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Judgment

2 HB 102/25 HCBCR 299/25 THE STATE Versus NGQABUTHO KHOZA And EMMANUEL KANDIDZANWA And OSCAR MUTAMBISI HIGH COURT OF ZIMBABWE CHIVAYO J BULAWAYO, 10, 26, 28 FEBRUARY, 3, 6, 7, 11, 13 MARCH 2025 Criminal Trial Judgment Mrs N Ngwenya, for the State Mr T Dzipe, for 1st accused Ms G Nyabawa, for 2nd accused Ms A Duri, for 3rd accused CHIVAYO J: The accused persons were arraigned before the court facing a charge of murder in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”) in that on the 27th of July 2019 Ngqabutho Khoza (“1st accused”), Emmanuel Kandidzanwa (“2nd accused”) and Oscar Mutambisi (“3rd accused”) unlawfully caused the death of Jevas Masvina (“the deceased”) by shooting him with an AK47 rifle twice at the back intending to kill the deceased or realizing that there was a real risk or possibility that their conduct may cause the death of the deceased continued to engage in that conduct despite the real risk or possibility. The accused persons were aged 29, 25 and 29 respectively at the time of the commission of the offence. They resided at 7112 Mkhosana township, Victoria Falls; 1728 Murombedzi township, Zvimba and B15, 11 Combat Group, Induna Barracks, Bulawayo respectively. The accused persons are members of the Zimbabwe National Army based at ZNA 11 Combat Group, Induna Barracks, Bulawayo. The deceased was aged 37 years and resided at 2913 Dulibadzimu, Beitbridge. The state alleges that on the 27th of July 2019, the deceased, his wife and other Zion Christian Church (ZCC) church mates drawn from Beitbridge sections boarded a Toyota Wish motor vehicle which was being driven by its owner Tsungirirai Ziteya who was also a church member, proceeded to their church shrine which is about 700 metres away from International Organisation of Migrants (IOM) offices, Beitbridge and opposite Beitbridge Airstrip where they were to conduct an all-night prayer session in the bush. It is further alleged that at about 1930 hours on the same day the vehicle parked about 28 meters before their church shrine and members began to disembark from the car. At the same time, the three accused persons who were all serving members in the Zimbabwe National Army appeared from the darkness wearing their military camouflage uniforms. They were all armed with service AK47 rifles. It is alleged that the accused persons suspected the deceased and his church mates to be smugglers of tobacco cigarettes intending to enter South Africa through an illegal crossing. It is the state’s allegation that the accused persons without identifying themselves ordered everyone to lie down on the ground but the deceased and some of his church mates resisted the warning and this prompted the 1st accused to fire two shots from his service rifle which one of the shots hit the deceased at the back and exited through the left side of the chest. It is said the deceased then fell down on his back facing upwards while bleeding profusely from gunshot wounds and subsequently died. All accused persons pleaded not guilty to the charge of murder. Summarily, the defence of the accused persons was that they were acting within the scope of their duties, and suspected the congregants of being smugglers. The 1st accused denied shooting the deceased in the manner alleged or at all. He said that during the course of his duties, when he was on patrol with the other two accused persons, he encountered a number of people, whom they suspected to be smugglers, offloading boxes along a narrow road strip. He went on to say he introduced himself along with his colleagues as members of the Zimbabwe National Army Combat Group and that they were on patrol; following which he ordered the suspected smugglers to lie down. Instead of submitting to the instruction, he said the suspected smugglers scattered in defiance. He reacted by firing a warning shot in the air to halt their movements; after which he called the suspected smugglers who had scattered to come back to their vehicle. He further said as he walked closer to the vehicle, the suspected smugglers started throwing stones at him. One of the stones hit him on the right eye, he got dizzy and knelt down. He said as he was kneeling, one of the suspected smugglers grabbed hold of his rifle wanting to wrestle it away. In the ensuing tussle, the firearm discharged resulting in the person who was trying to disarm him disengaging from the tussle. Fearing for his life, he ran away and met up with 2nd and 3rd accused later on. The 1st accused said he called one Major Ncube, about the incident, who ordered them to withdraw from their duties and come back to the barracks. He was shocked the next morning when he learnt of the death of the deceased through police officers who came looking for him and his co-accused. The 1st accused denied having intention to kill the deceased, alleging that he only tried to protect his service riffle from being snatched away from him. The 2nd accused, denied having intentionally caused the death of the deceased or at all. He said that he was on patrol duties with the 1st accused and the 3rd accused, when they saw people whom they suspected of being smugglers. He said that on the day in question, he was given his service riffle serial number ZA-40637, with his co-accused also in possession of theirs. He however indicated that before they had gone to patrol, he and the 3rd accused had left their weapons, and only the 1st accused was carrying a weapon when they saw the suspected smugglers. They followed the suspected smugglers, with the 1st accused in front, while he was trailing behind him at a distance of 150m. He further said he heard indistinct voices from about 150m and, also, heard the voice of the 1st accused. He told the court that a stone flew past him, but did not know who had thrown stones at him, and he took cover. Immediately after the voices, two-gun shots were fired, he fled back to the camp, wherein he later met up with the 1st accused who told him of his encounter. He reiterated that he remained at a distance of 150m and did not come closer than that. He said he never saw the body of the deceased nor did he have any contact with the suspected smugglers. The 3rd accused also denies having intentionally caused the death of the deceased, or at all. Like the other two, he was on duty on the fateful night with his other co-accused when they perceived the suspected smugglers offloading boxes. The 3rd accused said he had left his fire arm, an AK 47 serial number ZA 59352. They started the investigations, with the 1st accused doing the questioning, while he remained at a distance of 100 meters. He heard 1st accused introducing himself and ordering the suspected smugglers to lie down. He said he saw stones being thrown in all directions, and heard two gunshots being fired, which is when he sought cover by running back to their camp. Upon return to the camp, 1st accused told them what they had encountered. The 3rd accused reiterated that he was never in the scene as he remained 100 meters away, and was unarmed at the time, and therefore never caused the death of the deceased in any way. State’s evidence With consent of the defence the following exhibits were admitted into evidence. 1st accused confirmed warned and cautioned statement which was marked exhibit 1. 2nd accused confirmed warned and cautioned statement which was marked exhibit 2. 3rd accused confirmed warned and cautioned statement which was marked exhibit 3. Post mortem report sworn to by a pathologist called Doctor Lenos Samhere. The pathologist noted a gunshot wound to the chest whose entry was on the right lateral chest wall located on the 8th ICS. Its exit was on the 5th ICS further medial aspect of the left arm had an entry wound which exited on the lateral aspect of the left arm. In his final analysis, he concluded that the death of the deceased was a result of gunshot wound raptured lungs and heart, haemopneuomothorax and exsanguination. The autopsy report was marked as exhibit number 4.The AK 47 rifle was admitted in the evidence and marked as exhibit 5. Thereafter, the state led viva voce evidence from 6 witnesses, whose evidence was in support of their allegations as outlined in their summary. Their evidence is summarized briefly as follows: Calleb Sangu Caleb Sangu (Sangu) regarded the deceased during his lifetime as a brother. He testified that he was part of the congregants at the shrine on the day in question. The witness recounted that when they were nearing the shrine some of the church members disembarked and he remained in the car with the driver. Whilst on board he heard a gunshot sound and saw some sparks. The driver disembarked and ran away. He stated that he went out of the vehicle and lay beside a vehicle after mastering energy he stood up and started running away. He bumped on a tree and changed course, that is when he stumbled upon a dead body. He told the court that he switched the light of his phone and knelt down to figure out what had happened, and at that juncture someone who was approaching commanded him to lie down he complied. When two men reached the deceased’s feet, one of them called out the name ‘Khoza.’ The men commanded everyone to lie down and they complied. The men informed them that they were under arrest. After the utterances, the men left the scene going to collect their vehicle and promised to return. Time passed with no show of the men and the witness arose and went to his inform his brethren that someone was lying down. The witness concluded his testimony by saying that they were not in possession of boxes and that he did not manage to visualize who the intruders were. Under cross examination by then three Counsel for the accused persons, he was adamant that he did not see the men they had encountered but they were wearing black boots. He remained steadfast in his testimony that they were going to the shrine for prayers and were not in possession of any boxes. Tsungirirai Ziteya Tsungirirai Ziteya (Ziteya) told the court that he was the driver of the Toyota Wish vehicle on the fateful night. When the vehicle was approaching the shrine some of the church members alighted, so as to lower the load on the vehicle and it safely navigate the terrain without hitting the ground. He said after some distance he stopped the vehicle and switched off the engine. Within the spare of the moment, he heard two-gun shots and he saw people running. He remained in the car. After some time, he disembarked from the car running and took a hide in the dark. Moments later, he saw a torch illuminating the area from the eastern direction and that the person holding it was running. When the person got around the vehicle he called out ‘Khoza’. When he eventually came out of the hiding, he met Bosvo and Sangu who told him that Ziki had died. The witness took out his cellphone and phoned a police officer informing him about the death of the now deceased. Asked by the prosecution to comment whether he heard any introduction by the accused person, the witness responded that he did not hear any as he was in the car. The witness concluded his testimony by saying it was their first time to meet soldiers on patrol in the area. Farai Bosvo Farai Bosvo (Bosvo) told the court that when the shooting occurred they were all at the shrine having alighted from the vehicle. His recollection was that whilst at the shrine he heard footsteps coming from the shrine and was followed by a gunshot sound. This prompted some of his church mates to scatter and intruders pursued in running. The witness did not flee he remained at the shrine until the return of the intruders that is when he heard one of the intruders calling out the name ‘Khoza’. The three men went to the man who had been gunned down and thereafter the intruders left the place running. Under cross examination, he denied that there were stones thrown at the accused persons and that there was never any tussling of the firearm. Zephania Mangodo This witness told the court that he is an evangelist at the Zion Christian Church. He admitted throwing stones in the direction of the intruders after two gunshots.He concluded his oral testimony by saying after he had thrown the stones he left the place running and went to his home. Tinashe Serengwa. This witness is a duly attested member of the Zimbabwe Republic Police stationed at ZRP CID Beitbridge. He told the court that he co-investigated the case with a colleague who has since retired from the Police service. He said after being assigned a docket to investigate, he went to the army barracks to collect the accused persons and to recover their service rifles and uniforms. After effecting the arrest Serengwa told the court he then went to the scene of crime where he found deceased’s body lying and facing up. He observed a bullet on the right side of the deceased chest which he presumed was an entry wound on the left side. He observed another wound which he took for an exit wound because of some aspects of the lungs which were protruding from it. He further observed a motor vehicle at the centre of what he concluded was a shrine from the scene of the crime. After some days, he took the accused and selected witnesses for indications and a spent cartridge was recovered. He was also shown by accused the point where he tussled for his firearm with a certain man. From his findings, he concluded that the deceased and his church mates were not smugglers. Serengwa concluded his testimony by saying that the 1st accused was complaining of pain on his face which then made him to take him to hospital for medical examination. Martha Madakadze She was a serving member in the Zimbabwe National Army at the time of the consummation of the alleged criminal enterprise and stationed at Beitbridge. Her duties were issuing the firearms and ammunitions to soldiers going out for duty. She recounted issuing out to the accused AK47 rifle and ammunition to each of the accused. With this witness the state closed its case. Defence case. The defence in their case called the accused persons to the witness stand, who testified for themselves, and their evidence as submitted is discussed below. Ngqabutho Khoza The first defence witness was the 1st accused person. He adopted his defence outline as his evidence in chief. The 1st accused told the court that on the fateful evening he was on duty in the company of the 2nd and 3rd accused when he encountered the congregants, some of who testified before court. He told the court that when they observed lights of a stationary motor vehicle in some bushy area and they set out with his colleagues to go and investigate. It was his evidence that they approached this vehicle in a staggered formation, in which he was in front, followed by the 1st accused and 2nd accused. As he inched towards the vehicle, he saw some boxes that were being offloaded from the vehicle by a group of men and suddenly the lights of the vehicle went off. He said he shouted to them that he is a member of the Zimbabwe National Army and was on duty. He alleges that the men scattered resulting in him firing a warning shot in the air to hold their movements.He further said the suspected smugglers seemed to have obeyed his order, but however, all of a sudden, he was hit on the face with a stone. He felt dizzy and knelt down. The accused then alleges that it was at that juncture when a hefty bodied man appeared from nowhere and tried to disarm him of the firearm. He wrestled with the man until it discharged a shot. Describing how the rifle had discharged, he said he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. He further said an AK 47 is self- loading firearm, that if one squeezes the trigger another round is introduced in the chamber. He intimated to the court that the firearm discharged for the second whilst trying to protect his firearm from falling into wrong hands. Under cross examination he was asked on how the congregants got to know of his name Khoza, he alleged that his name might have been deduced from police officers, the next day in the morning. He further averred that it was not the usual thing for his mates to call each other using their real names as they have different undercover names while at work. Emmanuel Kandidzanwa. Likewise, the 2nd accused adopted his defence outline, and maintained that he did not go anywhere near the crime scene, nor did he encounter any of the congregants on the day in question. He was adamant that he was at a distance of about 150 meters away from the scene. They had agreed that only the 1st accused was to carry a firearm. Upon suspecting the congregants of being smugglers, it was the evidence of this accused that they devised a plan, in which the 1st accused was to be in front, the 2nd accused to follow in a distance of about 150 meters, and the third accused a further 100 meters behind. Under cross examination, he denied having ever called out the name Khoza, and maintained that they were using under cover names when they were at work. He disassociated himself from the actions which led to the death of the deceased. Oscar Mutambisi The 3rd accused also took to the witness stand and adopted his defence outline as his evidence in chief. His evidence was more in line with that of the 1st and 2nd accused persons, save for that he was about 100 meters away from the scene. He maintained that he never got anywhere near the scene, and that he did not encounter the congregants. He disassociated himself from the death of the deceased. With that the defence closed its case. Issues for determination Whether or not the 1st accused fired the fatal gunshots that killed the deceased.Whether the 2nd and third accused are also liable for the deceased’s death. The law The accused persons are charged with murder as defined by section 47 of the Code. Section 47(1) of the Code provides that: “Any person who causes the death of another person⎯ intending to kill the other person; orrealising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The essential elements for murder to be proved are that; there must be proof of intention which must be unlawful. Unlawful intention is termed mens rea, and the test for mens rea is subjective. Unlawful intention, mens rea, on its own is not a crime. The unlawful intention that which we agreed is mens rea has to be transformed from a thought into an action which is called actus reus. In the instant case, there must be unlawful intention which is driven into actus reus, thus, into action. The actus reus ultimately being the death which must result from an intentional unlawful killing. Where there is no intention there must be a realisation of a risk or possibility that death will result from one’s illegal action. The Supreme Court of Zimbabwe decided in the case of S vs Mapfoche SC-84-21 that where the two elements; that is intentional or where there is a real risk or possibility that death will happen were those two or one of those two is proved, murder is proved. Application of the law to the facts Whether the accused fired the gunshots that killed the deceased. On the 27th of July 2019, nine members of the ZCC proceeded to their shrine for prayers. On the same day, they arrived at their shrine during dusk hours. It was their evidence that they were carrying mainly bibles and some with church sticks or staffs. No additional baggage was carried by the nine men. On the contrary, the three accused who were deployed at the border post told this court that they followed the instructions of Major Ncube, given in what they term orders that they must instead of carrying out static guard duties at the border, they were instructed to patrol from the border post to the next airstrip. The three accused told this court that they had orders to carry out patrols looking for smugglers. They got to a place where they laid an ambush for smugglers. It is their evidence that when they got there they observed lights of a car. They saw movements of people and concluded that they were offloading boxes. The three agreed that the 1st accused, who was armed with an AK rifle moves in front. He was followed by accused two who was at a distance of 100m with the third accused who was said to be at a distance of 150m from accused one. The 3rd accused, however, mentioned that he was 80m from 2nd accused though they were not armed with their AK rifles as they had left them in the rack. The three advanced in that staggered position. That staggering was in accordance with their plan. The 2nd and 3rd accused got to a point where they realised 1st accused firing a shot. They heard a second shot and as soldiers, both of them concluded that the AK firearm which was discharging those shots was on rapid stage. On the other hand, the ZCC members who were going for a night vigil at the shrine summarised their evidence in that they heard footsteps of people who were running. The footsteps of those who were running was immediately followed by two gunshots. They reacted in different ways to the gun shots. Sangu who had remained in the car with the driver after hearing the gunshots sounds and observing sparks he ran away and, in the process, bumped into a tree and made u-turn stumbling on a body of the deceased. He remained in that position till he heard voices calling Khoza. He observed three people converging at the body of the deceased and that there was usage of a torch. He observed that the three men were wearing black boots. Soon after discovering the body of the deceased, the three left that body of the deceased running away.One Ziteya equally almost corroborated the evidence of Tsunga in that he heard the name Khoza being called and that there was a torch illuminating. He was told that Ziki had died. Bosvo, also, confirmed that the name Khoza was called out. Zephania Mangondo, also, heard two gunshots. He stated that because he was afraid of how these people had approached them and that they had fired two shots he whispered to his church members to equally throw stones but he concluded that none of the members heard what he had said that was well corroborated by the members who gave evidence in that they did not hear his instruction to pick up stones. It was Zephania Mangondo’s honest testimony that he indeed threw the stone he had towards the direction were the two gunshots had emanated from. It is not denied that the 1st accused sustained injuries as described in the medical report. But the cause of such injuries is not clear. This could have been a stone thrown by one Mangondo from a distance, as shown from the medical report that there was use of a blunt object.It is not disputed that the 1st accused fired a gunshot. From his submissions, it was clear that a second shot was fired as well, although he argued that this was as a result of a tustle with some man. The pathologist who carried out post mortem on the body of the deceased saw or observed two entry points of two bullets with two distinct exits. With the evidence of everyone including 1st and 2nd accused and all state witnesses that they heard two gunshots. The result? A dead body, lying down facing upwards, carrying his bible and a stick. It is the evidence of 1st accused that he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. The cocking handle, the safety catch and the trigger were all exposed to this purported man. If this court is to buy that explanation from 1st accused and conclude that the deceased must have been shot either by a warning shot or this other purported shot which is said to have been discharged from the firearm during this alleged tussle. Either of the bullets in view of where they found or observed by the pathologist were fatal. Whether the 2nd and 3rd accused are also liable for the deceased’s death. Section 196A of the Code provides the guidelines to prove that the requirements of common purpose are met. This section reads as follows: “196A Liability of co-perpetrators If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as 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.The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— were present at or in the immediate vicinity of the scene of the crime in circumstances which impli-cate them directly or indirectly in the commission of that crime; orwere associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; orengaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpe- trator of the crime as an accomplice or accessory if such are the facts proved.” The next question is, did the three accused act with a common purpose? From the onset the three accused agreed that they were going to waylay for smugglers and that 2nd and 3rd accused were going to leave their firearms behind. They all knew amongst themselves that the one who was armed was the 1st accused and this is the very reason why he was taking a lead. And that it was confessed and not denied that they strategically positioned themselves like that. This is the very reason why 2nd accused would remember that he was 100m from 1st accused and the 3rd accused 150m from 1st accused. It was a strategic position as agreed. The three accused were aware that in the event of anything which requires usage of a firearm, the 1st accused would take care.In Ncube v S, SC-90-90, it was held that for a person to be liable of murder he must have done something causally connected with the deceased’s death under the doctrine of common purpose. Active association with the common purpose, is also necessary, although the association can be implied.Res gestae is an exception to hearsay admissibility of hearsay evidence. In this case, evidence has been adduced by state witnesses that a name Khoza was called out on that night. It could not have been coincidence that the name Khoza is shouted in the heat of the moment and that amongst the three accused there is one with the surname Khoza. The defence tried to mention that it was the investigating officer who ultimately established that amongst the accused as Khoza so he is the one who told witnesses to repeat that in court. This court does not accept that suspicion. There is what is called Res Ipsa Loquitur a term which means that the facts speak for themselves. It could not have been the 1st accused who called out his name. It’s not logical. It could only have been either 2nd and 3rd accused who called out the name of accused one whom is in reality a Khoza. That name was only called out after the gun shots were fired, when they wanted to meet or reconvene. After the calling out of the name Khoza there is a direct observation of a witness who sees the three accused now standing next to the body of the deceased. There was illumination at were the body of the deceased was. The witness stated that it was usage of a torch. Whether a cell phone torch or any other torch but it was torched according to that witness and that was the reason why he was able to observe that those people were there and they were wearing black boots. Coincidentally, it turns out to be that on the night in question the three accused were wearing black boots as part of their uniform.It was the evidence of the state witness that the three left the body of the deceased running away promising to come back with a motor vehicle. Therefore, that the three were acting in common purpose has been proved in that the 2nd and 3rd accused did not withdraw they were always at the scene. They have however told this court that they tactfully withdrew from the scene and they ultimately met at the barracks. This court is satisfied that indeed the three from the onset till the end were acting with a common purpose.The last question is, was the shooting of the now deceased intentional? Evidence was led that the longest distance one could see was 2-3meters yet evidence was equally laid to the effect that the body of the deceased was ultimately found at a distance which was 6.5meters from where the first accused fired from. There is this element of a spark which was observed. It’s in two forms the spark could have emanated from the discharge of a bullet from the firearm or it could have been from type of the bullet which was discharged by this firearm called a tracer. That evidence was not adduced. However, it is important to note that because of the darkness which has been described this court has concluded that the three accused did not intend to cause the death of the deceased. They did not harbour any intention to kill the deceased, they all negligently caused his death. Disposition. Accordingly, we are not satisfied that the State managed to prove its case beyond reasonable doubt, that the accused persons are guilty of Murder. They are all therefore found not guilty and acquitted of the crime of murder but guilty of the permissible verdict of culpable homicide in contravention of section 49 of the Code. SENTENCING JUDGEMENT. In the case of S v Wankie HH-831-15 this Court alluded to the guidelines which are useful to follow when sentencing offenders convicted of culpable homicide. It emphasized the need to properly assess an offender’s degree of negligence in causing the death when it said: “the greater reason why the specific degree of negligence must be established in a charge of culpable homicide is for the purposes of sentence. The more severe form of negligence there is the greater the penalty must be.” It follows therefore that in the present case the starting point is to assess the offenders’ degree of negligence. The degree of negligence is not assessed from the injuries sustained by the deceased or his ultimate death but from analysing the circumstances which occurred on the ground at the material time. We have already accepted that the incident occurred at night and it was very dark. The offenders acted out of misconception that the deceased was a smuggler. For that reason, there cannot be any debate that the offenders’ degree of negligence was on the ordinary scale.In coming up with an appropriate sentence in this matter this court will consider what has been mentioned in both mitigation and aggravations. In their pre-sentencing address to the court, the 1st offender said is aged thirty-five, married to one wife with two children aged nine and four. He is a bread winner. It was brought to the attention of this court that there was no premeditation prior to the offence. And that absence of intention works for the offender in mitigation. It was the recommendation of the defence counsel for 1st offender that three years would be appropriate sentence in the circumstances with twelve months suspended for five years.The counsel for the second offender stated that the 2nd offender is indeed a first offender. There was pre-trial incarceration of a month and that there was a gap of seven years from the day the offence was committed to when the matter is finalised. That he is thirty years old with three children, married and he has savings of $400US. The defence counsel recommends 320 hours of community service.The counsel for the third offender in mitigation mentioned that the offender is thirty-five years old. He is married with two minor children and that he has $500US in savings. He proposed a sentence of a fine of US$600.In aggravation, the State mentioned that indeed a life was lost. No Victim Impact Statement was produced in court. There was no provocation from deceased. In the state’s view all the accused never displayed any sign of remorse instead the three accused showed impunity that six years lapsed before this matter was heard in court. She argued that the three have been convicted of the same offence, therefore, they must equally receive same punishment because their level of negligence was higher they must be sentenced between five to eight years. This court assessing the totality of the evidence adduced during trial and in mitigation realized that the three accused falls under a special category of people in society. They are trained to keep peace and mostly, provide safety of the generality of people. The three offenders are aware as trained officers that the golden rule for the usage of firearms is if in doubt do not fire. Usage of firearms result in lethal effects. The witnesses including the deceased had gone to their shrine for prayers. As it stands, an innocent soul of a person who had gone to pray is no more. Life is a God given gift this is the reason why there is a specific provision in the highest law of the land to the constitution which protects the right to life. Because of the importance of a life which is given once and forever. The powers which this court use to have to sentence a convicted murderer to death is no longer available. The scrapping and removal of death penalty is an appreciation of the sanctity of life. This court therefore frowns at people who remove God given gift of life. In this case the mission of the offenders was to arrest smugglers in the event that they were smugglers. It has turned out there was nothing related to any smuggling that was taking place. The deceased died clinging on to his bible and a church stuff through the negligence of the accused. The sentence this court is going to deliver is such that a clear message must be sent to people out there that those who happen to be trained or those who happen to be in possession of fire arms legally they must never use them unless if it’s a war set up. This court will however take into consideration that all the three are first offenders and are family men who have been serving the nation. For this reason, this court will relieve a substantial period of imprisonment on condition that they will never be convicted of an offence involving violence as an element.A ccordingly, each offender is sentenced to 8 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition he does not within that period, commit any offence involving violence or the negligent killing of another for which he is sentence d to imprisonment without the option of a fine. Effective 5 years imprisonment. CHIVAYO J………………………………… National Prosecuting Authority, State’s legal practitioners Morris Davies, 1st accused’s legal practitioners Nyabawa Legal Practice, 2nd accused legal Pundu and Company, 3rd accused legal practitioners 2 HB 102/25 HCBCR 299/25 2 HB 102/25 HCBCR 299/25 THE STATE Versus # THE STATE Versus NGQABUTHO KHOZA # NGQABUTHO KHOZA And # And EMMANUEL KANDIDZANWA # EMMANUEL KANDIDZANWA And # And OSCAR MUTAMBISI HIGH COURT OF ZIMBABWE CHIVAYO J BULAWAYO, 10, 26, 28 FEBRUARY, 3, 6, 7, 11, 13 MARCH 2025 Criminal Trial Judgment Mrs N Ngwenya, for the State Mr T Dzipe, for 1st accused Ms G Nyabawa, for 2nd accused Ms A Duri, for 3rd accused CHIVAYO J: The accused persons were arraigned before the court facing a charge of murder in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”) in that on the 27th of July 2019 Ngqabutho Khoza (“1st accused”), Emmanuel Kandidzanwa (“2nd accused”) and Oscar Mutambisi (“3rd accused”) unlawfully caused the death of Jevas Masvina (“the deceased”) by shooting him with an AK47 rifle twice at the back intending to kill the deceased or realizing that there was a real risk or possibility that their conduct may cause the death of the deceased continued to engage in that conduct despite the real risk or possibility. The accused persons were aged 29, 25 and 29 respectively at the time of the commission of the offence. They resided at 7112 Mkhosana township, Victoria Falls; 1728 Murombedzi township, Zvimba and B15, 11 Combat Group, Induna Barracks, Bulawayo respectively. The accused persons are members of the Zimbabwe National Army based at ZNA 11 Combat Group, Induna Barracks, Bulawayo. The deceased was aged 37 years and resided at 2913 Dulibadzimu, Beitbridge. The state alleges that on the 27th of July 2019, the deceased, his wife and other Zion Christian Church (ZCC) church mates drawn from Beitbridge sections boarded a Toyota Wish motor vehicle which was being driven by its owner Tsungirirai Ziteya who was also a church member, proceeded to their church shrine which is about 700 metres away from International Organisation of Migrants (IOM) offices, Beitbridge and opposite Beitbridge Airstrip where they were to conduct an all-night prayer session in the bush. It is further alleged that at about 1930 hours on the same day the vehicle parked about 28 meters before their church shrine and members began to disembark from the car. At the same time, the three accused persons who were all serving members in the Zimbabwe National Army appeared from the darkness wearing their military camouflage uniforms. They were all armed with service AK47 rifles. It is alleged that the accused persons suspected the deceased and his church mates to be smugglers of tobacco cigarettes intending to enter South Africa through an illegal crossing. It is the state’s allegation that the accused persons without identifying themselves ordered everyone to lie down on the ground but the deceased and some of his church mates resisted the warning and this prompted the 1st accused to fire two shots from his service rifle which one of the shots hit the deceased at the back and exited through the left side of the chest. It is said the deceased then fell down on his back facing upwards while bleeding profusely from gunshot wounds and subsequently died. All accused persons pleaded not guilty to the charge of murder. Summarily, the defence of the accused persons was that they were acting within the scope of their duties, and suspected the congregants of being smugglers. The 1st accused denied shooting the deceased in the manner alleged or at all. He said that during the course of his duties, when he was on patrol with the other two accused persons, he encountered a number of people, whom they suspected to be smugglers, offloading boxes along a narrow road strip. He went on to say he introduced himself along with his colleagues as members of the Zimbabwe National Army Combat Group and that they were on patrol; following which he ordered the suspected smugglers to lie down. Instead of submitting to the instruction, he said the suspected smugglers scattered in defiance. He reacted by firing a warning shot in the air to halt their movements; after which he called the suspected smugglers who had scattered to come back to their vehicle. He further said as he walked closer to the vehicle, the suspected smugglers started throwing stones at him. One of the stones hit him on the right eye, he got dizzy and knelt down. He said as he was kneeling, one of the suspected smugglers grabbed hold of his rifle wanting to wrestle it away. In the ensuing tussle, the firearm discharged resulting in the person who was trying to disarm him disengaging from the tussle. Fearing for his life, he ran away and met up with 2nd and 3rd accused later on. The 1st accused said he called one Major Ncube, about the incident, who ordered them to withdraw from their duties and come back to the barracks. He was shocked the next morning when he learnt of the death of the deceased through police officers who came looking for him and his co-accused. The 1st accused denied having intention to kill the deceased, alleging that he only tried to protect his service riffle from being snatched away from him. The 2nd accused, denied having intentionally caused the death of the deceased or at all. He said that he was on patrol duties with the 1st accused and the 3rd accused, when they saw people whom they suspected of being smugglers. He said that on the day in question, he was given his service riffle serial number ZA-40637, with his co-accused also in possession of theirs. He however indicated that before they had gone to patrol, he and the 3rd accused had left their weapons, and only the 1st accused was carrying a weapon when they saw the suspected smugglers. They followed the suspected smugglers, with the 1st accused in front, while he was trailing behind him at a distance of 150m. He further said he heard indistinct voices from about 150m and, also, heard the voice of the 1st accused. He told the court that a stone flew past him, but did not know who had thrown stones at him, and he took cover. Immediately after the voices, two-gun shots were fired, he fled back to the camp, wherein he later met up with the 1st accused who told him of his encounter. He reiterated that he remained at a distance of 150m and did not come closer than that. He said he never saw the body of the deceased nor did he have any contact with the suspected smugglers. The 3rd accused also denies having intentionally caused the death of the deceased, or at all. Like the other two, he was on duty on the fateful night with his other co-accused when they perceived the suspected smugglers offloading boxes. The 3rd accused said he had left his fire arm, an AK 47 serial number ZA 59352. They started the investigations, with the 1st accused doing the questioning, while he remained at a distance of 100 meters. He heard 1st accused introducing himself and ordering the suspected smugglers to lie down. He said he saw stones being thrown in all directions, and heard two gunshots being fired, which is when he sought cover by running back to their camp. Upon return to the camp, 1st accused told them what they had encountered. The 3rd accused reiterated that he was never in the scene as he remained 100 meters away, and was unarmed at the time, and therefore never caused the death of the deceased in any way. State’s evidence With consent of the defence the following exhibits were admitted into evidence. 1st accused confirmed warned and cautioned statement which was marked exhibit 1. 2nd accused confirmed warned and cautioned statement which was marked exhibit 2. 3rd accused confirmed warned and cautioned statement which was marked exhibit 3. Post mortem report sworn to by a pathologist called Doctor Lenos Samhere. The pathologist noted a gunshot wound to the chest whose entry was on the right lateral chest wall located on the 8th ICS. Its exit was on the 5th ICS further medial aspect of the left arm had an entry wound which exited on the lateral aspect of the left arm. In his final analysis, he concluded that the death of the deceased was a result of gunshot wound raptured lungs and heart, haemopneuomothorax and exsanguination. The autopsy report was marked as exhibit number 4.The AK 47 rifle was admitted in the evidence and marked as exhibit 5. Thereafter, the state led viva voce evidence from 6 witnesses, whose evidence was in support of their allegations as outlined in their summary. Their evidence is summarized briefly as follows: Calleb Sangu Caleb Sangu (Sangu) regarded the deceased during his lifetime as a brother. He testified that he was part of the congregants at the shrine on the day in question. The witness recounted that when they were nearing the shrine some of the church members disembarked and he remained in the car with the driver. Whilst on board he heard a gunshot sound and saw some sparks. The driver disembarked and ran away. He stated that he went out of the vehicle and lay beside a vehicle after mastering energy he stood up and started running away. He bumped on a tree and changed course, that is when he stumbled upon a dead body. He told the court that he switched the light of his phone and knelt down to figure out what had happened, and at that juncture someone who was approaching commanded him to lie down he complied. When two men reached the deceased’s feet, one of them called out the name ‘Khoza.’ The men commanded everyone to lie down and they complied. The men informed them that they were under arrest. After the utterances, the men left the scene going to collect their vehicle and promised to return. Time passed with no show of the men and the witness arose and went to his inform his brethren that someone was lying down. The witness concluded his testimony by saying that they were not in possession of boxes and that he did not manage to visualize who the intruders were. Under cross examination by then three Counsel for the accused persons, he was adamant that he did not see the men they had encountered but they were wearing black boots. He remained steadfast in his testimony that they were going to the shrine for prayers and were not in possession of any boxes. Tsungirirai Ziteya Tsungirirai Ziteya (Ziteya) told the court that he was the driver of the Toyota Wish vehicle on the fateful night. When the vehicle was approaching the shrine some of the church members alighted, so as to lower the load on the vehicle and it safely navigate the terrain without hitting the ground. He said after some distance he stopped the vehicle and switched off the engine. Within the spare of the moment, he heard two-gun shots and he saw people running. He remained in the car. After some time, he disembarked from the car running and took a hide in the dark. Moments later, he saw a torch illuminating the area from the eastern direction and that the person holding it was running. When the person got around the vehicle he called out ‘Khoza’. When he eventually came out of the hiding, he met Bosvo and Sangu who told him that Ziki had died. The witness took out his cellphone and phoned a police officer informing him about the death of the now deceased. Asked by the prosecution to comment whether he heard any introduction by the accused person, the witness responded that he did not hear any as he was in the car. The witness concluded his testimony by saying it was their first time to meet soldiers on patrol in the area. Farai Bosvo Farai Bosvo (Bosvo) told the court that when the shooting occurred they were all at the shrine having alighted from the vehicle. His recollection was that whilst at the shrine he heard footsteps coming from the shrine and was followed by a gunshot sound. This prompted some of his church mates to scatter and intruders pursued in running. The witness did not flee he remained at the shrine until the return of the intruders that is when he heard one of the intruders calling out the name ‘Khoza’. The three men went to the man who had been gunned down and thereafter the intruders left the place running. Under cross examination, he denied that there were stones thrown at the accused persons and that there was never any tussling of the firearm. Zephania Mangodo This witness told the court that he is an evangelist at the Zion Christian Church. He admitted throwing stones in the direction of the intruders after two gunshots.He concluded his oral testimony by saying after he had thrown the stones he left the place running and went to his home. Tinashe Serengwa. This witness is a duly attested member of the Zimbabwe Republic Police stationed at ZRP CID Beitbridge. He told the court that he co-investigated the case with a colleague who has since retired from the Police service. He said after being assigned a docket to investigate, he went to the army barracks to collect the accused persons and to recover their service rifles and uniforms. After effecting the arrest Serengwa told the court he then went to the scene of crime where he found deceased’s body lying and facing up. He observed a bullet on the right side of the deceased chest which he presumed was an entry wound on the left side. He observed another wound which he took for an exit wound because of some aspects of the lungs which were protruding from it. He further observed a motor vehicle at the centre of what he concluded was a shrine from the scene of the crime. After some days, he took the accused and selected witnesses for indications and a spent cartridge was recovered. He was also shown by accused the point where he tussled for his firearm with a certain man. From his findings, he concluded that the deceased and his church mates were not smugglers. Serengwa concluded his testimony by saying that the 1st accused was complaining of pain on his face which then made him to take him to hospital for medical examination. Martha Madakadze She was a serving member in the Zimbabwe National Army at the time of the consummation of the alleged criminal enterprise and stationed at Beitbridge. Her duties were issuing the firearms and ammunitions to soldiers going out for duty. She recounted issuing out to the accused AK47 rifle and ammunition to each of the accused. With this witness the state closed its case. Defence case. The defence in their case called the accused persons to the witness stand, who testified for themselves, and their evidence as submitted is discussed below. Ngqabutho Khoza The first defence witness was the 1st accused person. He adopted his defence outline as his evidence in chief. The 1st accused told the court that on the fateful evening he was on duty in the company of the 2nd and 3rd accused when he encountered the congregants, some of who testified before court. He told the court that when they observed lights of a stationary motor vehicle in some bushy area and they set out with his colleagues to go and investigate. It was his evidence that they approached this vehicle in a staggered formation, in which he was in front, followed by the 1st accused and 2nd accused. As he inched towards the vehicle, he saw some boxes that were being offloaded from the vehicle by a group of men and suddenly the lights of the vehicle went off. He said he shouted to them that he is a member of the Zimbabwe National Army and was on duty. He alleges that the men scattered resulting in him firing a warning shot in the air to hold their movements.He further said the suspected smugglers seemed to have obeyed his order, but however, all of a sudden, he was hit on the face with a stone. He felt dizzy and knelt down. The accused then alleges that it was at that juncture when a hefty bodied man appeared from nowhere and tried to disarm him of the firearm. He wrestled with the man until it discharged a shot. Describing how the rifle had discharged, he said he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. He further said an AK 47 is self- loading firearm, that if one squeezes the trigger another round is introduced in the chamber. He intimated to the court that the firearm discharged for the second whilst trying to protect his firearm from falling into wrong hands. Under cross examination he was asked on how the congregants got to know of his name Khoza, he alleged that his name might have been deduced from police officers, the next day in the morning. He further averred that it was not the usual thing for his mates to call each other using their real names as they have different undercover names while at work. Emmanuel Kandidzanwa. Likewise, the 2nd accused adopted his defence outline, and maintained that he did not go anywhere near the crime scene, nor did he encounter any of the congregants on the day in question. He was adamant that he was at a distance of about 150 meters away from the scene. They had agreed that only the 1st accused was to carry a firearm. Upon suspecting the congregants of being smugglers, it was the evidence of this accused that they devised a plan, in which the 1st accused was to be in front, the 2nd accused to follow in a distance of about 150 meters, and the third accused a further 100 meters behind. Under cross examination, he denied having ever called out the name Khoza, and maintained that they were using under cover names when they were at work. He disassociated himself from the actions which led to the death of the deceased. Oscar Mutambisi The 3rd accused also took to the witness stand and adopted his defence outline as his evidence in chief. His evidence was more in line with that of the 1st and 2nd accused persons, save for that he was about 100 meters away from the scene. He maintained that he never got anywhere near the scene, and that he did not encounter the congregants. He disassociated himself from the death of the deceased. With that the defence closed its case. Issues for determination Whether or not the 1st accused fired the fatal gunshots that killed the deceased.Whether the 2nd and third accused are also liable for the deceased’s death. The law The accused persons are charged with murder as defined by section 47 of the Code. Section 47(1) of the Code provides that: “Any person who causes the death of another person⎯ intending to kill the other person; orrealising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The essential elements for murder to be proved are that; there must be proof of intention which must be unlawful. Unlawful intention is termed mens rea, and the test for mens rea is subjective. Unlawful intention, mens rea, on its own is not a crime. The unlawful intention that which we agreed is mens rea has to be transformed from a thought into an action which is called actus reus. In the instant case, there must be unlawful intention which is driven into actus reus, thus, into action. The actus reus ultimately being the death which must result from an intentional unlawful killing. Where there is no intention there must be a realisation of a risk or possibility that death will result from one’s illegal action. The Supreme Court of Zimbabwe decided in the case of S vs Mapfoche SC-84-21 that where the two elements; that is intentional or where there is a real risk or possibility that death will happen were those two or one of those two is proved, murder is proved. Application of the law to the facts Whether the accused fired the gunshots that killed the deceased. On the 27th of July 2019, nine members of the ZCC proceeded to their shrine for prayers. On the same day, they arrived at their shrine during dusk hours. It was their evidence that they were carrying mainly bibles and some with church sticks or staffs. No additional baggage was carried by the nine men. On the contrary, the three accused who were deployed at the border post told this court that they followed the instructions of Major Ncube, given in what they term orders that they must instead of carrying out static guard duties at the border, they were instructed to patrol from the border post to the next airstrip. The three accused told this court that they had orders to carry out patrols looking for smugglers. They got to a place where they laid an ambush for smugglers. It is their evidence that when they got there they observed lights of a car. They saw movements of people and concluded that they were offloading boxes. The three agreed that the 1st accused, who was armed with an AK rifle moves in front. He was followed by accused two who was at a distance of 100m with the third accused who was said to be at a distance of 150m from accused one. The 3rd accused, however, mentioned that he was 80m from 2nd accused though they were not armed with their AK rifles as they had left them in the rack. The three advanced in that staggered position. That staggering was in accordance with their plan. The 2nd and 3rd accused got to a point where they realised 1st accused firing a shot. They heard a second shot and as soldiers, both of them concluded that the AK firearm which was discharging those shots was on rapid stage. On the other hand, the ZCC members who were going for a night vigil at the shrine summarised their evidence in that they heard footsteps of people who were running. The footsteps of those who were running was immediately followed by two gunshots. They reacted in different ways to the gun shots. Sangu who had remained in the car with the driver after hearing the gunshots sounds and observing sparks he ran away and, in the process, bumped into a tree and made u-turn stumbling on a body of the deceased. He remained in that position till he heard voices calling Khoza. He observed three people converging at the body of the deceased and that there was usage of a torch. He observed that the three men were wearing black boots. Soon after discovering the body of the deceased, the three left that body of the deceased running away.One Ziteya equally almost corroborated the evidence of Tsunga in that he heard the name Khoza being called and that there was a torch illuminating. He was told that Ziki had died. Bosvo, also, confirmed that the name Khoza was called out. Zephania Mangondo, also, heard two gunshots. He stated that because he was afraid of how these people had approached them and that they had fired two shots he whispered to his church members to equally throw stones but he concluded that none of the members heard what he had said that was well corroborated by the members who gave evidence in that they did not hear his instruction to pick up stones. It was Zephania Mangondo’s honest testimony that he indeed threw the stone he had towards the direction were the two gunshots had emanated from. It is not denied that the 1st accused sustained injuries as described in the medical report. But the cause of such injuries is not clear. This could have been a stone thrown by one Mangondo from a distance, as shown from the medical report that there was use of a blunt object.It is not disputed that the 1st accused fired a gunshot. From his submissions, it was clear that a second shot was fired as well, although he argued that this was as a result of a tustle with some man. The pathologist who carried out post mortem on the body of the deceased saw or observed two entry points of two bullets with two distinct exits. With the evidence of everyone including 1st and 2nd accused and all state witnesses that they heard two gunshots. The result? A dead body, lying down facing upwards, carrying his bible and a stick. It is the evidence of 1st accused that he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. The cocking handle, the safety catch and the trigger were all exposed to this purported man. If this court is to buy that explanation from 1st accused and conclude that the deceased must have been shot either by a warning shot or this other purported shot which is said to have been discharged from the firearm during this alleged tussle. Either of the bullets in view of where they found or observed by the pathologist were fatal. Whether the 2nd and 3rd accused are also liable for the deceased’s death. Section 196A of the Code provides the guidelines to prove that the requirements of common purpose are met. This section reads as follows: “196A Liability of co-perpetrators If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as 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.The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— were present at or in the immediate vicinity of the scene of the crime in circumstances which impli-cate them directly or indirectly in the commission of that crime; orwere associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; orengaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpe- trator of the crime as an accomplice or accessory if such are the facts proved.” The next question is, did the three accused act with a common purpose? From the onset the three accused agreed that they were going to waylay for smugglers and that 2nd and 3rd accused were going to leave their firearms behind. They all knew amongst themselves that the one who was armed was the 1st accused and this is the very reason why he was taking a lead. And that it was confessed and not denied that they strategically positioned themselves like that. This is the very reason why 2nd accused would remember that he was 100m from 1st accused and the 3rd accused 150m from 1st accused. It was a strategic position as agreed. The three accused were aware that in the event of anything which requires usage of a firearm, the 1st accused would take care.In Ncube v S, SC-90-90, it was held that for a person to be liable of murder he must have done something causally connected with the deceased’s death under the doctrine of common purpose. Active association with the common purpose, is also necessary, although the association can be implied.Res gestae is an exception to hearsay admissibility of hearsay evidence. In this case, evidence has been adduced by state witnesses that a name Khoza was called out on that night. It could not have been coincidence that the name Khoza is shouted in the heat of the moment and that amongst the three accused there is one with the surname Khoza. The defence tried to mention that it was the investigating officer who ultimately established that amongst the accused as Khoza so he is the one who told witnesses to repeat that in court. This court does not accept that suspicion. There is what is called Res Ipsa Loquitur a term which means that the facts speak for themselves. It could not have been the 1st accused who called out his name. It’s not logical. It could only have been either 2nd and 3rd accused who called out the name of accused one whom is in reality a Khoza. That name was only called out after the gun shots were fired, when they wanted to meet or reconvene. After the calling out of the name Khoza there is a direct observation of a witness who sees the three accused now standing next to the body of the deceased. There was illumination at were the body of the deceased was. The witness stated that it was usage of a torch. Whether a cell phone torch or any other torch but it was torched according to that witness and that was the reason why he was able to observe that those people were there and they were wearing black boots. Coincidentally, it turns out to be that on the night in question the three accused were wearing black boots as part of their uniform.It was the evidence of the state witness that the three left the body of the deceased running away promising to come back with a motor vehicle. Therefore, that the three were acting in common purpose has been proved in that the 2nd and 3rd accused did not withdraw they were always at the scene. They have however told this court that they tactfully withdrew from the scene and they ultimately met at the barracks. This court is satisfied that indeed the three from the onset till the end were acting with a common purpose.The last question is, was the shooting of the now deceased intentional? Evidence was led that the longest distance one could see was 2-3meters yet evidence was equally laid to the effect that the body of the deceased was ultimately found at a distance which was 6.5meters from where the first accused fired from. There is this element of a spark which was observed. It’s in two forms the spark could have emanated from the discharge of a bullet from the firearm or it could have been from type of the bullet which was discharged by this firearm called a tracer. That evidence was not adduced. However, it is important to note that because of the darkness which has been described this court has concluded that the three accused did not intend to cause the death of the deceased. They did not harbour any intention to kill the deceased, they all negligently caused his death. Disposition. Accordingly, we are not satisfied that the State managed to prove its case beyond reasonable doubt, that the accused persons are guilty of Murder. They are all therefore found not guilty and acquitted of the crime of murder but guilty of the permissible verdict of culpable homicide in contravention of section 49 of the Code. # OSCAR MUTAMBISI HIGH COURT OF ZIMBABWE CHIVAYO J BULAWAYO, 10, 26, 28 FEBRUARY, 3, 6, 7, 11, 13 MARCH 2025 Criminal Trial Judgment Mrs N Ngwenya, for the State Mr T Dzipe, for 1st accused Ms G Nyabawa, for 2nd accused Ms A Duri, for 3rd accused CHIVAYO J: The accused persons were arraigned before the court facing a charge of murder in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”) in that on the 27th of July 2019 Ngqabutho Khoza (“1st accused”), Emmanuel Kandidzanwa (“2nd accused”) and Oscar Mutambisi (“3rd accused”) unlawfully caused the death of Jevas Masvina (“the deceased”) by shooting him with an AK47 rifle twice at the back intending to kill the deceased or realizing that there was a real risk or possibility that their conduct may cause the death of the deceased continued to engage in that conduct despite the real risk or possibility. The accused persons were aged 29, 25 and 29 respectively at the time of the commission of the offence. They resided at 7112 Mkhosana township, Victoria Falls; 1728 Murombedzi township, Zvimba and B15, 11 Combat Group, Induna Barracks, Bulawayo respectively. The accused persons are members of the Zimbabwe National Army based at ZNA 11 Combat Group, Induna Barracks, Bulawayo. The deceased was aged 37 years and resided at 2913 Dulibadzimu, Beitbridge. The state alleges that on the 27th of July 2019, the deceased, his wife and other Zion Christian Church (ZCC) church mates drawn from Beitbridge sections boarded a Toyota Wish motor vehicle which was being driven by its owner Tsungirirai Ziteya who was also a church member, proceeded to their church shrine which is about 700 metres away from International Organisation of Migrants (IOM) offices, Beitbridge and opposite Beitbridge Airstrip where they were to conduct an all-night prayer session in the bush. It is further alleged that at about 1930 hours on the same day the vehicle parked about 28 meters before their church shrine and members began to disembark from the car. At the same time, the three accused persons who were all serving members in the Zimbabwe National Army appeared from the darkness wearing their military camouflage uniforms. They were all armed with service AK47 rifles. It is alleged that the accused persons suspected the deceased and his church mates to be smugglers of tobacco cigarettes intending to enter South Africa through an illegal crossing. It is the state’s allegation that the accused persons without identifying themselves ordered everyone to lie down on the ground but the deceased and some of his church mates resisted the warning and this prompted the 1st accused to fire two shots from his service rifle which one of the shots hit the deceased at the back and exited through the left side of the chest. It is said the deceased then fell down on his back facing upwards while bleeding profusely from gunshot wounds and subsequently died. All accused persons pleaded not guilty to the charge of murder. Summarily, the defence of the accused persons was that they were acting within the scope of their duties, and suspected the congregants of being smugglers. The 1st accused denied shooting the deceased in the manner alleged or at all. He said that during the course of his duties, when he was on patrol with the other two accused persons, he encountered a number of people, whom they suspected to be smugglers, offloading boxes along a narrow road strip. He went on to say he introduced himself along with his colleagues as members of the Zimbabwe National Army Combat Group and that they were on patrol; following which he ordered the suspected smugglers to lie down. Instead of submitting to the instruction, he said the suspected smugglers scattered in defiance. He reacted by firing a warning shot in the air to halt their movements; after which he called the suspected smugglers who had scattered to come back to their vehicle. He further said as he walked closer to the vehicle, the suspected smugglers started throwing stones at him. One of the stones hit him on the right eye, he got dizzy and knelt down. He said as he was kneeling, one of the suspected smugglers grabbed hold of his rifle wanting to wrestle it away. In the ensuing tussle, the firearm discharged resulting in the person who was trying to disarm him disengaging from the tussle. Fearing for his life, he ran away and met up with 2nd and 3rd accused later on. The 1st accused said he called one Major Ncube, about the incident, who ordered them to withdraw from their duties and come back to the barracks. He was shocked the next morning when he learnt of the death of the deceased through police officers who came looking for him and his co-accused. The 1st accused denied having intention to kill the deceased, alleging that he only tried to protect his service riffle from being snatched away from him. The 2nd accused, denied having intentionally caused the death of the deceased or at all. He said that he was on patrol duties with the 1st accused and the 3rd accused, when they saw people whom they suspected of being smugglers. He said that on the day in question, he was given his service riffle serial number ZA-40637, with his co-accused also in possession of theirs. He however indicated that before they had gone to patrol, he and the 3rd accused had left their weapons, and only the 1st accused was carrying a weapon when they saw the suspected smugglers. They followed the suspected smugglers, with the 1st accused in front, while he was trailing behind him at a distance of 150m. He further said he heard indistinct voices from about 150m and, also, heard the voice of the 1st accused. He told the court that a stone flew past him, but did not know who had thrown stones at him, and he took cover. Immediately after the voices, two-gun shots were fired, he fled back to the camp, wherein he later met up with the 1st accused who told him of his encounter. He reiterated that he remained at a distance of 150m and did not come closer than that. He said he never saw the body of the deceased nor did he have any contact with the suspected smugglers. The 3rd accused also denies having intentionally caused the death of the deceased, or at all. Like the other two, he was on duty on the fateful night with his other co-accused when they perceived the suspected smugglers offloading boxes. The 3rd accused said he had left his fire arm, an AK 47 serial number ZA 59352. They started the investigations, with the 1st accused doing the questioning, while he remained at a distance of 100 meters. He heard 1st accused introducing himself and ordering the suspected smugglers to lie down. He said he saw stones being thrown in all directions, and heard two gunshots being fired, which is when he sought cover by running back to their camp. Upon return to the camp, 1st accused told them what they had encountered. The 3rd accused reiterated that he was never in the scene as he remained 100 meters away, and was unarmed at the time, and therefore never caused the death of the deceased in any way. ## Criminal Trial Judgment Mrs N Ngwenya, for the State Mr T Dzipe, for 1st accused Ms G Nyabawa, for 2nd accused Ms A Duri, for 3rd accused CHIVAYO J: The accused persons were arraigned before the court facing a charge of murder in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”) in that on the 27th of July 2019 Ngqabutho Khoza (“1st accused”), Emmanuel Kandidzanwa (“2nd accused”) and Oscar Mutambisi (“3rd accused”) unlawfully caused the death of Jevas Masvina (“the deceased”) by shooting him with an AK47 rifle twice at the back intending to kill the deceased or realizing that there was a real risk or possibility that their conduct may cause the death of the deceased continued to engage in that conduct despite the real risk or possibility. The accused persons were aged 29, 25 and 29 respectively at the time of the commission of the offence. They resided at 7112 Mkhosana township, Victoria Falls; 1728 Murombedzi township, Zvimba and B15, 11 Combat Group, Induna Barracks, Bulawayo respectively. The accused persons are members of the Zimbabwe National Army based at ZNA 11 Combat Group, Induna Barracks, Bulawayo. The deceased was aged 37 years and resided at 2913 Dulibadzimu, Beitbridge. The state alleges that on the 27th of July 2019, the deceased, his wife and other Zion Christian Church (ZCC) church mates drawn from Beitbridge sections boarded a Toyota Wish motor vehicle which was being driven by its owner Tsungirirai Ziteya who was also a church member, proceeded to their church shrine which is about 700 metres away from International Organisation of Migrants (IOM) offices, Beitbridge and opposite Beitbridge Airstrip where they were to conduct an all-night prayer session in the bush. It is further alleged that at about 1930 hours on the same day the vehicle parked about 28 meters before their church shrine and members began to disembark from the car. At the same time, the three accused persons who were all serving members in the Zimbabwe National Army appeared from the darkness wearing their military camouflage uniforms. They were all armed with service AK47 rifles. It is alleged that the accused persons suspected the deceased and his church mates to be smugglers of tobacco cigarettes intending to enter South Africa through an illegal crossing. It is the state’s allegation that the accused persons without identifying themselves ordered everyone to lie down on the ground but the deceased and some of his church mates resisted the warning and this prompted the 1st accused to fire two shots from his service rifle which one of the shots hit the deceased at the back and exited through the left side of the chest. It is said the deceased then fell down on his back facing upwards while bleeding profusely from gunshot wounds and subsequently died. All accused persons pleaded not guilty to the charge of murder. Summarily, the defence of the accused persons was that they were acting within the scope of their duties, and suspected the congregants of being smugglers. The 1st accused denied shooting the deceased in the manner alleged or at all. He said that during the course of his duties, when he was on patrol with the other two accused persons, he encountered a number of people, whom they suspected to be smugglers, offloading boxes along a narrow road strip. He went on to say he introduced himself along with his colleagues as members of the Zimbabwe National Army Combat Group and that they were on patrol; following which he ordered the suspected smugglers to lie down. Instead of submitting to the instruction, he said the suspected smugglers scattered in defiance. He reacted by firing a warning shot in the air to halt their movements; after which he called the suspected smugglers who had scattered to come back to their vehicle. He further said as he walked closer to the vehicle, the suspected smugglers started throwing stones at him. One of the stones hit him on the right eye, he got dizzy and knelt down. He said as he was kneeling, one of the suspected smugglers grabbed hold of his rifle wanting to wrestle it away. In the ensuing tussle, the firearm discharged resulting in the person who was trying to disarm him disengaging from the tussle. Fearing for his life, he ran away and met up with 2nd and 3rd accused later on. The 1st accused said he called one Major Ncube, about the incident, who ordered them to withdraw from their duties and come back to the barracks. He was shocked the next morning when he learnt of the death of the deceased through police officers who came looking for him and his co-accused. The 1st accused denied having intention to kill the deceased, alleging that he only tried to protect his service riffle from being snatched away from him. The 2nd accused, denied having intentionally caused the death of the deceased or at all. He said that he was on patrol duties with the 1st accused and the 3rd accused, when they saw people whom they suspected of being smugglers. He said that on the day in question, he was given his service riffle serial number ZA-40637, with his co-accused also in possession of theirs. He however indicated that before they had gone to patrol, he and the 3rd accused had left their weapons, and only the 1st accused was carrying a weapon when they saw the suspected smugglers. They followed the suspected smugglers, with the 1st accused in front, while he was trailing behind him at a distance of 150m. He further said he heard indistinct voices from about 150m and, also, heard the voice of the 1st accused. He told the court that a stone flew past him, but did not know who had thrown stones at him, and he took cover. Immediately after the voices, two-gun shots were fired, he fled back to the camp, wherein he later met up with the 1st accused who told him of his encounter. He reiterated that he remained at a distance of 150m and did not come closer than that. He said he never saw the body of the deceased nor did he have any contact with the suspected smugglers. The 3rd accused also denies having intentionally caused the death of the deceased, or at all. Like the other two, he was on duty on the fateful night with his other co-accused when they perceived the suspected smugglers offloading boxes. The 3rd accused said he had left his fire arm, an AK 47 serial number ZA 59352. They started the investigations, with the 1st accused doing the questioning, while he remained at a distance of 100 meters. He heard 1st accused introducing himself and ordering the suspected smugglers to lie down. He said he saw stones being thrown in all directions, and heard two gunshots being fired, which is when he sought cover by running back to their camp. Upon return to the camp, 1st accused told them what they had encountered. The 3rd accused reiterated that he was never in the scene as he remained 100 meters away, and was unarmed at the time, and therefore never caused the death of the deceased in any way. State’s evidence With consent of the defence the following exhibits were admitted into evidence. 1st accused confirmed warned and cautioned statement which was marked exhibit 1. 2nd accused confirmed warned and cautioned statement which was marked exhibit 2. 3rd accused confirmed warned and cautioned statement which was marked exhibit 3. Post mortem report sworn to by a pathologist called Doctor Lenos Samhere. The pathologist noted a gunshot wound to the chest whose entry was on the right lateral chest wall located on the 8th ICS. Its exit was on the 5th ICS further medial aspect of the left arm had an entry wound which exited on the lateral aspect of the left arm. In his final analysis, he concluded that the death of the deceased was a result of gunshot wound raptured lungs and heart, haemopneuomothorax and exsanguination. The autopsy report was marked as exhibit number 4.The AK 47 rifle was admitted in the evidence and marked as exhibit 5. Thereafter, the state led viva voce evidence from 6 witnesses, whose evidence was in support of their allegations as outlined in their summary. Their evidence is summarized briefly as follows: ## State’s evidence With consent of the defence the following exhibits were admitted into evidence. 1st accused confirmed warned and cautioned statement which was marked exhibit 1. 2nd accused confirmed warned and cautioned statement which was marked exhibit 2. 3rd accused confirmed warned and cautioned statement which was marked exhibit 3. Post mortem report sworn to by a pathologist called Doctor Lenos Samhere. The pathologist noted a gunshot wound to the chest whose entry was on the right lateral chest wall located on the 8th ICS. Its exit was on the 5th ICS further medial aspect of the left arm had an entry wound which exited on the lateral aspect of the left arm. In his final analysis, he concluded that the death of the deceased was a result of gunshot wound raptured lungs and heart, haemopneuomothorax and exsanguination. The autopsy report was marked as exhibit number 4. The AK 47 rifle was admitted in the evidence and marked as exhibit 5. Thereafter, the state led viva voce evidence from 6 witnesses, whose evidence was in support of their allegations as outlined in their summary. Their evidence is summarized briefly as follows: Calleb Sangu Caleb Sangu (Sangu) regarded the deceased during his lifetime as a brother. He testified that he was part of the congregants at the shrine on the day in question. The witness recounted that when they were nearing the shrine some of the church members disembarked and he remained in the car with the driver. Whilst on board he heard a gunshot sound and saw some sparks. The driver disembarked and ran away. He stated that he went out of the vehicle and lay beside a vehicle after mastering energy he stood up and started running away. He bumped on a tree and changed course, that is when he stumbled upon a dead body. He told the court that he switched the light of his phone and knelt down to figure out what had happened, and at that juncture someone who was approaching commanded him to lie down he complied. When two men reached the deceased’s feet, one of them called out the name ‘Khoza.’ The men commanded everyone to lie down and they complied. The men informed them that they were under arrest. After the utterances, the men left the scene going to collect their vehicle and promised to return. Time passed with no show of the men and the witness arose and went to his inform his brethren that someone was lying down. The witness concluded his testimony by saying that they were not in possession of boxes and that he did not manage to visualize who the intruders were. Under cross examination by then three Counsel for the accused persons, he was adamant that he did not see the men they had encountered but they were wearing black boots. He remained steadfast in his testimony that they were going to the shrine for prayers and were not in possession of any boxes. ## Calleb Sangu Caleb Sangu (Sangu) regarded the deceased during his lifetime as a brother. He testified that he was part of the congregants at the shrine on the day in question. The witness recounted that when they were nearing the shrine some of the church members disembarked and he remained in the car with the driver. Whilst on board he heard a gunshot sound and saw some sparks. The driver disembarked and ran away. He stated that he went out of the vehicle and lay beside a vehicle after mastering energy he stood up and started running away. He bumped on a tree and changed course, that is when he stumbled upon a dead body. He told the court that he switched the light of his phone and knelt down to figure out what had happened, and at that juncture someone who was approaching commanded him to lie down he complied. When two men reached the deceased’s feet, one of them called out the name ‘Khoza.’ The men commanded everyone to lie down and they complied. The men informed them that they were under arrest. After the utterances, the men left the scene going to collect their vehicle and promised to return. Time passed with no show of the men and the witness arose and went to his inform his brethren that someone was lying down. The witness concluded his testimony by saying that they were not in possession of boxes and that he did not manage to visualize who the intruders were. Under cross examination by then three Counsel for the accused persons, he was adamant that he did not see the men they had encountered but they were wearing black boots. He remained steadfast in his testimony that they were going to the shrine for prayers and were not in possession of any boxes. Tsungirirai Ziteya Tsungirirai Ziteya (Ziteya) told the court that he was the driver of the Toyota Wish vehicle on the fateful night. When the vehicle was approaching the shrine some of the church members alighted, so as to lower the load on the vehicle and it safely navigate the terrain without hitting the ground. He said after some distance he stopped the vehicle and switched off the engine. Within the spare of the moment, he heard two-gun shots and he saw people running. He remained in the car. After some time, he disembarked from the car running and took a hide in the dark. Moments later, he saw a torch illuminating the area from the eastern direction and that the person holding it was running. When the person got around the vehicle he called out ‘Khoza’. When he eventually came out of the hiding, he met Bosvo and Sangu who told him that Ziki had died. The witness took out his cellphone and phoned a police officer informing him about the death of the now deceased. Asked by the prosecution to comment whether he heard any introduction by the accused person, the witness responded that he did not hear any as he was in the car. The witness concluded his testimony by saying it was their first time to meet soldiers on patrol in the area. ## Tsungirirai Ziteya Tsungirirai Ziteya (Ziteya) told the court that he was the driver of the Toyota Wish vehicle on the fateful night. When the vehicle was approaching the shrine some of the church members alighted, so as to lower the load on the vehicle and it safely navigate the terrain without hitting the ground. He said after some distance he stopped the vehicle and switched off the engine. Within the spare of the moment, he heard two-gun shots and he saw people running. He remained in the car. After some time, he disembarked from the car running and took a hide in the dark. Moments later, he saw a torch illuminating the area from the eastern direction and that the person holding it was running. When the person got around the vehicle he called out ‘Khoza’. When he eventually came out of the hiding, he met Bosvo and Sangu who told him that Ziki had died. The witness took out his cellphone and phoned a police officer informing him about the death of the now deceased. Asked by the prosecution to comment whether he heard any introduction by the accused person, the witness responded that he did not hear any as he was in the car. The witness concluded his testimony by saying it was their first time to meet soldiers on patrol in the area. Farai Bosvo Farai Bosvo (Bosvo) told the court that when the shooting occurred they were all at the shrine having alighted from the vehicle. His recollection was that whilst at the shrine he heard footsteps coming from the shrine and was followed by a gunshot sound. This prompted some of his church mates to scatter and intruders pursued in running. The witness did not flee he remained at the shrine until the return of the intruders that is when he heard one of the intruders calling out the name ‘Khoza’. The three men went to the man who had been gunned down and thereafter the intruders left the place running. Under cross examination, he denied that there were stones thrown at the accused persons and that there was never any tussling of the firearm. ## Farai Bosvo Farai Bosvo (Bosvo) told the court that when the shooting occurred they were all at the shrine having alighted from the vehicle. His recollection was that whilst at the shrine he heard footsteps coming from the shrine and was followed by a gunshot sound. This prompted some of his church mates to scatter and intruders pursued in running. The witness did not flee he remained at the shrine until the return of the intruders that is when he heard one of the intruders calling out the name ‘Khoza’. The three men went to the man who had been gunned down and thereafter the intruders left the place running. Under cross examination, he denied that there were stones thrown at the accused persons and that there was never any tussling of the firearm. Zephania Mangodo This witness told the court that he is an evangelist at the Zion Christian Church. He admitted throwing stones in the direction of the intruders after two gunshots.He concluded his oral testimony by saying after he had thrown the stones he left the place running and went to his home. ## Zephania Mangodo This witness told the court that he is an evangelist at the Zion Christian Church. He admitted throwing stones in the direction of the intruders after two gunshots.He concluded his oral testimony by saying after he had thrown the stones he left the place running and went to his home. Tinashe Serengwa. This witness is a duly attested member of the Zimbabwe Republic Police stationed at ZRP CID Beitbridge. He told the court that he co-investigated the case with a colleague who has since retired from the Police service. He said after being assigned a docket to investigate, he went to the army barracks to collect the accused persons and to recover their service rifles and uniforms. After effecting the arrest Serengwa told the court he then went to the scene of crime where he found deceased’s body lying and facing up. He observed a bullet on the right side of the deceased chest which he presumed was an entry wound on the left side. He observed another wound which he took for an exit wound because of some aspects of the lungs which were protruding from it. He further observed a motor vehicle at the centre of what he concluded was a shrine from the scene of the crime. After some days, he took the accused and selected witnesses for indications and a spent cartridge was recovered. He was also shown by accused the point where he tussled for his firearm with a certain man. From his findings, he concluded that the deceased and his church mates were not smugglers. Serengwa concluded his testimony by saying that the 1st accused was complaining of pain on his face which then made him to take him to hospital for medical examination. ## Tinashe Serengwa. This witness is a duly attested member of the Zimbabwe Republic Police stationed at ZRP CID Beitbridge. He told the court that he co-investigated the case with a colleague who has since retired from the Police service. He said after being assigned a docket to investigate, he went to the army barracks to collect the accused persons and to recover their service rifles and uniforms. After effecting the arrest Serengwa told the court he then went to the scene of crime where he found deceased’s body lying and facing up. He observed a bullet on the right side of the deceased chest which he presumed was an entry wound on the left side. He observed another wound which he took for an exit wound because of some aspects of the lungs which were protruding from it. He further observed a motor vehicle at the centre of what he concluded was a shrine from the scene of the crime. After some days, he took the accused and selected witnesses for indications and a spent cartridge was recovered. He was also shown by accused the point where he tussled for his firearm with a certain man. From his findings, he concluded that the deceased and his church mates were not smugglers. Serengwa concluded his testimony by saying that the 1st accused was complaining of pain on his face which then made him to take him to hospital for medical examination. Martha Madakadze She was a serving member in the Zimbabwe National Army at the time of the consummation of the alleged criminal enterprise and stationed at Beitbridge. Her duties were issuing the firearms and ammunitions to soldiers going out for duty. She recounted issuing out to the accused AK47 rifle and ammunition to each of the accused. With this witness the state closed its case. ## Martha Madakadze She was a serving member in the Zimbabwe National Army at the time of the consummation of the alleged criminal enterprise and stationed at Beitbridge. Her duties were issuing the firearms and ammunitions to soldiers going out for duty. She recounted issuing out to the accused AK47 rifle and ammunition to each of the accused. With this witness the state closed its case. Defence case. The defence in their case called the accused persons to the witness stand, who testified for themselves, and their evidence as submitted is discussed below. ## Defence case. The defence in their case called the accused persons to the witness stand, who testified for themselves, and their evidence as submitted is discussed below. Ngqabutho Khoza The first defence witness was the 1st accused person. He adopted his defence outline as his evidence in chief. The 1st accused told the court that on the fateful evening he was on duty in the company of the 2nd and 3rd accused when he encountered the congregants, some of who testified before court. He told the court that when they observed lights of a stationary motor vehicle in some bushy area and they set out with his colleagues to go and investigate. It was his evidence that they approached this vehicle in a staggered formation, in which he was in front, followed by the 1st accused and 2nd accused. As he inched towards the vehicle, he saw some boxes that were being offloaded from the vehicle by a group of men and suddenly the lights of the vehicle went off. He said he shouted to them that he is a member of the Zimbabwe National Army and was on duty. He alleges that the men scattered resulting in him firing a warning shot in the air to hold their movements.He further said the suspected smugglers seemed to have obeyed his order, but however, all of a sudden, he was hit on the face with a stone. He felt dizzy and knelt down. The accused then alleges that it was at that juncture when a hefty bodied man appeared from nowhere and tried to disarm him of the firearm. He wrestled with the man until it discharged a shot. Describing how the rifle had discharged, he said he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. He further said an AK 47 is self- loading firearm, that if one squeezes the trigger another round is introduced in the chamber. He intimated to the court that the firearm discharged for the second whilst trying to protect his firearm from falling into wrong hands. Under cross examination he was asked on how the congregants got to know of his name Khoza, he alleged that his name might have been deduced from police officers, the next day in the morning. He further averred that it was not the usual thing for his mates to call each other using their real names as they have different undercover names while at work. ## Ngqabutho Khoza The first defence witness was the 1st accused person. He adopted his defence outline as his evidence in chief. The 1st accused told the court that on the fateful evening he was on duty in the company of the 2nd and 3rd accused when he encountered the congregants, some of who testified before court. He told the court that when they observed lights of a stationary motor vehicle in some bushy area and they set out with his colleagues to go and investigate. It was his evidence that they approached this vehicle in a staggered formation, in which he was in front, followed by the 1st accused and 2nd accused. As he inched towards the vehicle, he saw some boxes that were being offloaded from the vehicle by a group of men and suddenly the lights of the vehicle went off. He said he shouted to them that he is a member of the Zimbabwe National Army and was on duty. He alleges that the men scattered resulting in him firing a warning shot in the air to hold their movements. He further said the suspected smugglers seemed to have obeyed his order, but however, all of a sudden, he was hit on the face with a stone. He felt dizzy and knelt down. The accused then alleges that it was at that juncture when a hefty bodied man appeared from nowhere and tried to disarm him of the firearm. He wrestled with the man until it discharged a shot. Describing how the rifle had discharged, he said he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. He further said an AK 47 is self- loading firearm, that if one squeezes the trigger another round is introduced in the chamber. He intimated to the court that the firearm discharged for the second whilst trying to protect his firearm from falling into wrong hands. Under cross examination he was asked on how the congregants got to know of his name Khoza, he alleged that his name might have been deduced from police officers, the next day in the morning. He further averred that it was not the usual thing for his mates to call each other using their real names as they have different undercover names while at work. Emmanuel Kandidzanwa. Likewise, the 2nd accused adopted his defence outline, and maintained that he did not go anywhere near the crime scene, nor did he encounter any of the congregants on the day in question. He was adamant that he was at a distance of about 150 meters away from the scene. They had agreed that only the 1st accused was to carry a firearm. Upon suspecting the congregants of being smugglers, it was the evidence of this accused that they devised a plan, in which the 1st accused was to be in front, the 2nd accused to follow in a distance of about 150 meters, and the third accused a further 100 meters behind. Under cross examination, he denied having ever called out the name Khoza, and maintained that they were using under cover names when they were at work. He disassociated himself from the actions which led to the death of the deceased. ## Emmanuel Kandidzanwa. Likewise, the 2nd accused adopted his defence outline, and maintained that he did not go anywhere near the crime scene, nor did he encounter any of the congregants on the day in question. He was adamant that he was at a distance of about 150 meters away from the scene. They had agreed that only the 1st accused was to carry a firearm. Upon suspecting the congregants of being smugglers, it was the evidence of this accused that they devised a plan, in which the 1st accused was to be in front, the 2nd accused to follow in a distance of about 150 meters, and the third accused a further 100 meters behind. Under cross examination, he denied having ever called out the name Khoza, and maintained that they were using under cover names when they were at work. He disassociated himself from the actions which led to the death of the deceased. Oscar Mutambisi The 3rd accused also took to the witness stand and adopted his defence outline as his evidence in chief. His evidence was more in line with that of the 1st and 2nd accused persons, save for that he was about 100 meters away from the scene. He maintained that he never got anywhere near the scene, and that he did not encounter the congregants. He disassociated himself from the death of the deceased. With that the defence closed its case. Issues for determination Whether or not the 1st accused fired the fatal gunshots that killed the deceased.Whether the 2nd and third accused are also liable for the deceased’s death. ## Oscar Mutambisi The 3rd accused also took to the witness stand and adopted his defence outline as his evidence in chief. His evidence was more in line with that of the 1st and 2nd accused persons, save for that he was about 100 meters away from the scene. He maintained that he never got anywhere near the scene, and that he did not encounter the congregants. He disassociated himself from the death of the deceased. With that the defence closed its case. Issues for determination Whether or not the 1st accused fired the fatal gunshots that killed the deceased.Whether the 2nd and third accused are also liable for the deceased’s death. ### Issues for determination Whether or not the 1st accused fired the fatal gunshots that killed the deceased. Whether the 2nd and third accused are also liable for the deceased’s death. The law The accused persons are charged with murder as defined by section 47 of the Code. Section 47(1) of the Code provides that: “Any person who causes the death of another person⎯ intending to kill the other person; orrealising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The essential elements for murder to be proved are that; there must be proof of intention which must be unlawful. Unlawful intention is termed mens rea, and the test for mens rea is subjective. Unlawful intention, mens rea, on its own is not a crime. The unlawful intention that which we agreed is mens rea has to be transformed from a thought into an action which is called actus reus. In the instant case, there must be unlawful intention which is driven into actus reus, thus, into action. The actus reus ultimately being the death which must result from an intentional unlawful killing. Where there is no intention there must be a realisation of a risk or possibility that death will result from one’s illegal action. The Supreme Court of Zimbabwe decided in the case of S vs Mapfoche SC-84-21 that where the two elements; that is intentional or where there is a real risk or possibility that death will happen were those two or one of those two is proved, murder is proved. ## The law The accused persons are charged with murder as defined by section 47 of the Code. Section 47(1) of the Code provides that: “Any person who causes the death of another person⎯ intending to kill the other person; or realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The essential elements for murder to be proved are that; there must be proof of intention which must be unlawful. Unlawful intention is termed mens rea, and the test for mens rea is subjective. Unlawful intention, mens rea, on its own is not a crime. The unlawful intention that which we agreed is mens rea has to be transformed from a thought into an action which is called actus reus. In the instant case, there must be unlawful intention which is driven into actus reus, thus, into action. The actus reus ultimately being the death which must result from an intentional unlawful killing. Where there is no intention there must be a realisation of a risk or possibility that death will result from one’s illegal action. The Supreme Court of Zimbabwe decided in the case of S vs Mapfoche SC-84-21 that where the two elements; that is intentional or where there is a real risk or possibility that death will happen were those two or one of those two is proved, murder is proved. Application of the law to the facts Whether the accused fired the gunshots that killed the deceased. On the 27th of July 2019, nine members of the ZCC proceeded to their shrine for prayers. On the same day, they arrived at their shrine during dusk hours. It was their evidence that they were carrying mainly bibles and some with church sticks or staffs. No additional baggage was carried by the nine men. On the contrary, the three accused who were deployed at the border post told this court that they followed the instructions of Major Ncube, given in what they term orders that they must instead of carrying out static guard duties at the border, they were instructed to patrol from the border post to the next airstrip. The three accused told this court that they had orders to carry out patrols looking for smugglers. They got to a place where they laid an ambush for smugglers. It is their evidence that when they got there they observed lights of a car. They saw movements of people and concluded that they were offloading boxes. The three agreed that the 1st accused, who was armed with an AK rifle moves in front. He was followed by accused two who was at a distance of 100m with the third accused who was said to be at a distance of 150m from accused one. The 3rd accused, however, mentioned that he was 80m from 2nd accused though they were not armed with their AK rifles as they had left them in the rack. The three advanced in that staggered position. That staggering was in accordance with their plan. The 2nd and 3rd accused got to a point where they realised 1st accused firing a shot. They heard a second shot and as soldiers, both of them concluded that the AK firearm which was discharging those shots was on rapid stage. On the other hand, the ZCC members who were going for a night vigil at the shrine summarised their evidence in that they heard footsteps of people who were running. The footsteps of those who were running was immediately followed by two gunshots. They reacted in different ways to the gun shots. Sangu who had remained in the car with the driver after hearing the gunshots sounds and observing sparks he ran away and, in the process, bumped into a tree and made u-turn stumbling on a body of the deceased. He remained in that position till he heard voices calling Khoza. He observed three people converging at the body of the deceased and that there was usage of a torch. He observed that the three men were wearing black boots. Soon after discovering the body of the deceased, the three left that body of the deceased running away.One Ziteya equally almost corroborated the evidence of Tsunga in that he heard the name Khoza being called and that there was a torch illuminating. He was told that Ziki had died. Bosvo, also, confirmed that the name Khoza was called out. Zephania Mangondo, also, heard two gunshots. He stated that because he was afraid of how these people had approached them and that they had fired two shots he whispered to his church members to equally throw stones but he concluded that none of the members heard what he had said that was well corroborated by the members who gave evidence in that they did not hear his instruction to pick up stones. It was Zephania Mangondo’s honest testimony that he indeed threw the stone he had towards the direction were the two gunshots had emanated from. It is not denied that the 1st accused sustained injuries as described in the medical report. But the cause of such injuries is not clear. This could have been a stone thrown by one Mangondo from a distance, as shown from the medical report that there was use of a blunt object.It is not disputed that the 1st accused fired a gunshot. From his submissions, it was clear that a second shot was fired as well, although he argued that this was as a result of a tustle with some man. The pathologist who carried out post mortem on the body of the deceased saw or observed two entry points of two bullets with two distinct exits. With the evidence of everyone including 1st and 2nd accused and all state witnesses that they heard two gunshots. The result? A dead body, lying down facing upwards, carrying his bible and a stick. It is the evidence of 1st accused that he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. The cocking handle, the safety catch and the trigger were all exposed to this purported man. If this court is to buy that explanation from 1st accused and conclude that the deceased must have been shot either by a warning shot or this other purported shot which is said to have been discharged from the firearm during this alleged tussle. Either of the bullets in view of where they found or observed by the pathologist were fatal. Whether the 2nd and 3rd accused are also liable for the deceased’s death. Section 196A of the Code provides the guidelines to prove that the requirements of common purpose are met. This section reads as follows: “196A Liability of co-perpetrators If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as 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.The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— were present at or in the immediate vicinity of the scene of the crime in circumstances which impli-cate them directly or indirectly in the commission of that crime; orwere associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; orengaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpe- trator of the crime as an accomplice or accessory if such are the facts proved.” The next question is, did the three accused act with a common purpose? From the onset the three accused agreed that they were going to waylay for smugglers and that 2nd and 3rd accused were going to leave their firearms behind. They all knew amongst themselves that the one who was armed was the 1st accused and this is the very reason why he was taking a lead. And that it was confessed and not denied that they strategically positioned themselves like that. This is the very reason why 2nd accused would remember that he was 100m from 1st accused and the 3rd accused 150m from 1st accused. It was a strategic position as agreed. The three accused were aware that in the event of anything which requires usage of a firearm, the 1st accused would take care.In Ncube v S, SC-90-90, it was held that for a person to be liable of murder he must have done something causally connected with the deceased’s death under the doctrine of common purpose. Active association with the common purpose, is also necessary, although the association can be implied.Res gestae is an exception to hearsay admissibility of hearsay evidence. In this case, evidence has been adduced by state witnesses that a name Khoza was called out on that night. It could not have been coincidence that the name Khoza is shouted in the heat of the moment and that amongst the three accused there is one with the surname Khoza. The defence tried to mention that it was the investigating officer who ultimately established that amongst the accused as Khoza so he is the one who told witnesses to repeat that in court. This court does not accept that suspicion. There is what is called Res Ipsa Loquitur a term which means that the facts speak for themselves. It could not have been the 1st accused who called out his name. It’s not logical. It could only have been either 2nd and 3rd accused who called out the name of accused one whom is in reality a Khoza. That name was only called out after the gun shots were fired, when they wanted to meet or reconvene. After the calling out of the name Khoza there is a direct observation of a witness who sees the three accused now standing next to the body of the deceased. There was illumination at were the body of the deceased was. The witness stated that it was usage of a torch. Whether a cell phone torch or any other torch but it was torched according to that witness and that was the reason why he was able to observe that those people were there and they were wearing black boots. Coincidentally, it turns out to be that on the night in question the three accused were wearing black boots as part of their uniform.It was the evidence of the state witness that the three left the body of the deceased running away promising to come back with a motor vehicle. Therefore, that the three were acting in common purpose has been proved in that the 2nd and 3rd accused did not withdraw they were always at the scene. They have however told this court that they tactfully withdrew from the scene and they ultimately met at the barracks. This court is satisfied that indeed the three from the onset till the end were acting with a common purpose.The last question is, was the shooting of the now deceased intentional? Evidence was led that the longest distance one could see was 2-3meters yet evidence was equally laid to the effect that the body of the deceased was ultimately found at a distance which was 6.5meters from where the first accused fired from. There is this element of a spark which was observed. It’s in two forms the spark could have emanated from the discharge of a bullet from the firearm or it could have been from type of the bullet which was discharged by this firearm called a tracer. That evidence was not adduced. However, it is important to note that because of the darkness which has been described this court has concluded that the three accused did not intend to cause the death of the deceased. They did not harbour any intention to kill the deceased, they all negligently caused his death. Disposition. Accordingly, we are not satisfied that the State managed to prove its case beyond reasonable doubt, that the accused persons are guilty of Murder. They are all therefore found not guilty and acquitted of the crime of murder but guilty of the permissible verdict of culpable homicide in contravention of section 49 of the Code. ## Application of the law to the facts Whether the accused fired the gunshots that killed the deceased. On the 27th of July 2019, nine members of the ZCC proceeded to their shrine for prayers. On the same day, they arrived at their shrine during dusk hours. It was their evidence that they were carrying mainly bibles and some with church sticks or staffs. No additional baggage was carried by the nine men. On the contrary, the three accused who were deployed at the border post told this court that they followed the instructions of Major Ncube, given in what they term orders that they must instead of carrying out static guard duties at the border, they were instructed to patrol from the border post to the next airstrip. The three accused told this court that they had orders to carry out patrols looking for smugglers. They got to a place where they laid an ambush for smugglers. It is their evidence that when they got there they observed lights of a car. They saw movements of people and concluded that they were offloading boxes. The three agreed that the 1st accused, who was armed with an AK rifle moves in front. He was followed by accused two who was at a distance of 100m with the third accused who was said to be at a distance of 150m from accused one. The 3rd accused, however, mentioned that he was 80m from 2nd accused though they were not armed with their AK rifles as they had left them in the rack. The three advanced in that staggered position. That staggering was in accordance with their plan. The 2nd and 3rd accused got to a point where they realised 1st accused firing a shot. They heard a second shot and as soldiers, both of them concluded that the AK firearm which was discharging those shots was on rapid stage. On the other hand, the ZCC members who were going for a night vigil at the shrine summarised their evidence in that they heard footsteps of people who were running. The footsteps of those who were running was immediately followed by two gunshots. They reacted in different ways to the gun shots. Sangu who had remained in the car with the driver after hearing the gunshots sounds and observing sparks he ran away and, in the process, bumped into a tree and made u-turn stumbling on a body of the deceased. He remained in that position till he heard voices calling Khoza. He observed three people converging at the body of the deceased and that there was usage of a torch. He observed that the three men were wearing black boots. Soon after discovering the body of the deceased, the three left that body of the deceased running away.One Ziteya equally almost corroborated the evidence of Tsunga in that he heard the name Khoza being called and that there was a torch illuminating. He was told that Ziki had died. Bosvo, also, confirmed that the name Khoza was called out. Zephania Mangondo, also, heard two gunshots. He stated that because he was afraid of how these people had approached them and that they had fired two shots he whispered to his church members to equally throw stones but he concluded that none of the members heard what he had said that was well corroborated by the members who gave evidence in that they did not hear his instruction to pick up stones. It was Zephania Mangondo’s honest testimony that he indeed threw the stone he had towards the direction were the two gunshots had emanated from. It is not denied that the 1st accused sustained injuries as described in the medical report. But the cause of such injuries is not clear. This could have been a stone thrown by one Mangondo from a distance, as shown from the medical report that there was use of a blunt object.It is not disputed that the 1st accused fired a gunshot. From his submissions, it was clear that a second shot was fired as well, although he argued that this was as a result of a tustle with some man. The pathologist who carried out post mortem on the body of the deceased saw or observed two entry points of two bullets with two distinct exits. With the evidence of everyone including 1st and 2nd accused and all state witnesses that they heard two gunshots. The result? A dead body, lying down facing upwards, carrying his bible and a stick. It is the evidence of 1st accused that he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. The cocking handle, the safety catch and the trigger were all exposed to this purported man. If this court is to buy that explanation from 1st accused and conclude that the deceased must have been shot either by a warning shot or this other purported shot which is said to have been discharged from the firearm during this alleged tussle. Either of the bullets in view of where they found or observed by the pathologist were fatal. ### Whether the accused fired the gunshots that killed the deceased. On the 27th of July 2019, nine members of the ZCC proceeded to their shrine for prayers. On the same day, they arrived at their shrine during dusk hours. It was their evidence that they were carrying mainly bibles and some with church sticks or staffs. No additional baggage was carried by the nine men. On the contrary, the three accused who were deployed at the border post told this court that they followed the instructions of Major Ncube, given in what they term orders that they must instead of carrying out static guard duties at the border, they were instructed to patrol from the border post to the next airstrip. The three accused told this court that they had orders to carry out patrols looking for smugglers. They got to a place where they laid an ambush for smugglers. It is their evidence that when they got there they observed lights of a car. They saw movements of people and concluded that they were offloading boxes. The three agreed that the 1st accused, who was armed with an AK rifle moves in front. He was followed by accused two who was at a distance of 100m with the third accused who was said to be at a distance of 150m from accused one. The 3rd accused, however, mentioned that he was 80m from 2nd accused though they were not armed with their AK rifles as they had left them in the rack. The three advanced in that staggered position. That staggering was in accordance with their plan. The 2nd and 3rd accused got to a point where they realised 1st accused firing a shot. They heard a second shot and as soldiers, both of them concluded that the AK firearm which was discharging those shots was on rapid stage. On the other hand, the ZCC members who were going for a night vigil at the shrine summarised their evidence in that they heard footsteps of people who were running. The footsteps of those who were running was immediately followed by two gunshots. They reacted in different ways to the gun shots. Sangu who had remained in the car with the driver after hearing the gunshots sounds and observing sparks he ran away and, in the process, bumped into a tree and made u-turn stumbling on a body of the deceased. He remained in that position till he heard voices calling Khoza. He observed three people converging at the body of the deceased and that there was usage of a torch. He observed that the three men were wearing black boots. Soon after discovering the body of the deceased, the three left that body of the deceased running away. One Ziteya equally almost corroborated the evidence of Tsunga in that he heard the name Khoza being called and that there was a torch illuminating. He was told that Ziki had died. Bosvo, also, confirmed that the name Khoza was called out. Zephania Mangondo, also, heard two gunshots. He stated that because he was afraid of how these people had approached them and that they had fired two shots he whispered to his church members to equally throw stones but he concluded that none of the members heard what he had said that was well corroborated by the members who gave evidence in that they did not hear his instruction to pick up stones. It was Zephania Mangondo’s honest testimony that he indeed threw the stone he had towards the direction were the two gunshots had emanated from. It is not denied that the 1st accused sustained injuries as described in the medical report. But the cause of such injuries is not clear. This could have been a stone thrown by one Mangondo from a distance, as shown from the medical report that there was use of a blunt object. It is not disputed that the 1st accused fired a gunshot. From his submissions, it was clear that a second shot was fired as well, although he argued that this was as a result of a tustle with some man. The pathologist who carried out post mortem on the body of the deceased saw or observed two entry points of two bullets with two distinct exits. With the evidence of everyone including 1st and 2nd accused and all state witnesses that they heard two gunshots. The result? A dead body, lying down facing upwards, carrying his bible and a stick. It is the evidence of 1st accused that he was holding the small of the butt with the other hand holding the gas tube of the AK rifle. The cocking handle, the safety catch and the trigger were all exposed to this purported man. If this court is to buy that explanation from 1st accused and conclude that the deceased must have been shot either by a warning shot or this other purported shot which is said to have been discharged from the firearm during this alleged tussle. Either of the bullets in view of where they found or observed by the pathologist were fatal. Whether the 2nd and 3rd accused are also liable for the deceased’s death. Section 196A of the Code provides the guidelines to prove that the requirements of common purpose are met. This section reads as follows: “196A Liability of co-perpetrators If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as 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.The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— were present at or in the immediate vicinity of the scene of the crime in circumstances which impli-cate them directly or indirectly in the commission of that crime; orwere associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; orengaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpe- trator of the crime as an accomplice or accessory if such are the facts proved.” The next question is, did the three accused act with a common purpose? From the onset the three accused agreed that they were going to waylay for smugglers and that 2nd and 3rd accused were going to leave their firearms behind. They all knew amongst themselves that the one who was armed was the 1st accused and this is the very reason why he was taking a lead. And that it was confessed and not denied that they strategically positioned themselves like that. This is the very reason why 2nd accused would remember that he was 100m from 1st accused and the 3rd accused 150m from 1st accused. It was a strategic position as agreed. The three accused were aware that in the event of anything which requires usage of a firearm, the 1st accused would take care.In Ncube v S, SC-90-90, it was held that for a person to be liable of murder he must have done something causally connected with the deceased’s death under the doctrine of common purpose. Active association with the common purpose, is also necessary, although the association can be implied.Res gestae is an exception to hearsay admissibility of hearsay evidence. In this case, evidence has been adduced by state witnesses that a name Khoza was called out on that night. It could not have been coincidence that the name Khoza is shouted in the heat of the moment and that amongst the three accused there is one with the surname Khoza. The defence tried to mention that it was the investigating officer who ultimately established that amongst the accused as Khoza so he is the one who told witnesses to repeat that in court. This court does not accept that suspicion. There is what is called Res Ipsa Loquitur a term which means that the facts speak for themselves. It could not have been the 1st accused who called out his name. It’s not logical. It could only have been either 2nd and 3rd accused who called out the name of accused one whom is in reality a Khoza. That name was only called out after the gun shots were fired, when they wanted to meet or reconvene. After the calling out of the name Khoza there is a direct observation of a witness who sees the three accused now standing next to the body of the deceased. There was illumination at were the body of the deceased was. The witness stated that it was usage of a torch. Whether a cell phone torch or any other torch but it was torched according to that witness and that was the reason why he was able to observe that those people were there and they were wearing black boots. Coincidentally, it turns out to be that on the night in question the three accused were wearing black boots as part of their uniform.It was the evidence of the state witness that the three left the body of the deceased running away promising to come back with a motor vehicle. Therefore, that the three were acting in common purpose has been proved in that the 2nd and 3rd accused did not withdraw they were always at the scene. They have however told this court that they tactfully withdrew from the scene and they ultimately met at the barracks. This court is satisfied that indeed the three from the onset till the end were acting with a common purpose.The last question is, was the shooting of the now deceased intentional? Evidence was led that the longest distance one could see was 2-3meters yet evidence was equally laid to the effect that the body of the deceased was ultimately found at a distance which was 6.5meters from where the first accused fired from. There is this element of a spark which was observed. It’s in two forms the spark could have emanated from the discharge of a bullet from the firearm or it could have been from type of the bullet which was discharged by this firearm called a tracer. That evidence was not adduced. However, it is important to note that because of the darkness which has been described this court has concluded that the three accused did not intend to cause the death of the deceased. They did not harbour any intention to kill the deceased, they all negligently caused his death. Disposition. Accordingly, we are not satisfied that the State managed to prove its case beyond reasonable doubt, that the accused persons are guilty of Murder. They are all therefore found not guilty and acquitted of the crime of murder but guilty of the permissible verdict of culpable homicide in contravention of section 49 of the Code. ### Whether the 2nd and 3rd accused are also liable for the deceased’s death. Section 196A of the Code provides the guidelines to prove that the requirements of common purpose are met. This section reads as follows: “196A Liability of co-perpetrators If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as 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. The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— were present at or in the immediate vicinity of the scene of the crime in circumstances which impli-cate them directly or indirectly in the commission of that crime; or were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged. A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpe- trator of the crime as an accomplice or accessory if such are the facts proved.” The next question is, did the three accused act with a common purpose? From the onset the three accused agreed that they were going to waylay for smugglers and that 2nd and 3rd accused were going to leave their firearms behind. They all knew amongst themselves that the one who was armed was the 1st accused and this is the very reason why he was taking a lead. And that it was confessed and not denied that they strategically positioned themselves like that. This is the very reason why 2nd accused would remember that he was 100m from 1st accused and the 3rd accused 150m from 1st accused. It was a strategic position as agreed. The three accused were aware that in the event of anything which requires usage of a firearm, the 1st accused would take care. In Ncube v S, SC-90-90, it was held that for a person to be liable of murder he must have done something causally connected with the deceased’s death under the doctrine of common purpose. Active association with the common purpose, is also necessary, although the association can be implied. Res gestae is an exception to hearsay admissibility of hearsay evidence. In this case, evidence has been adduced by state witnesses that a name Khoza was called out on that night. It could not have been coincidence that the name Khoza is shouted in the heat of the moment and that amongst the three accused there is one with the surname Khoza. The defence tried to mention that it was the investigating officer who ultimately established that amongst the accused as Khoza so he is the one who told witnesses to repeat that in court. This court does not accept that suspicion. There is what is called Res Ipsa Loquitur a term which means that the facts speak for themselves. It could not have been the 1st accused who called out his name. It’s not logical. It could only have been either 2nd and 3rd accused who called out the name of accused one whom is in reality a Khoza. That name was only called out after the gun shots were fired, when they wanted to meet or reconvene. After the calling out of the name Khoza there is a direct observation of a witness who sees the three accused now standing next to the body of the deceased. There was illumination at were the body of the deceased was. The witness stated that it was usage of a torch. Whether a cell phone torch or any other torch but it was torched according to that witness and that was the reason why he was able to observe that those people were there and they were wearing black boots. Coincidentally, it turns out to be that on the night in question the three accused were wearing black boots as part of their uniform. It was the evidence of the state witness that the three left the body of the deceased running away promising to come back with a motor vehicle. Therefore, that the three were acting in common purpose has been proved in that the 2nd and 3rd accused did not withdraw they were always at the scene. They have however told this court that they tactfully withdrew from the scene and they ultimately met at the barracks. This court is satisfied that indeed the three from the onset till the end were acting with a common purpose. The last question is, was the shooting of the now deceased intentional? Evidence was led that the longest distance one could see was 2-3meters yet evidence was equally laid to the effect that the body of the deceased was ultimately found at a distance which was 6.5meters from where the first accused fired from. There is this element of a spark which was observed. It’s in two forms the spark could have emanated from the discharge of a bullet from the firearm or it could have been from type of the bullet which was discharged by this firearm called a tracer. That evidence was not adduced. However, it is important to note that because of the darkness which has been described this court has concluded that the three accused did not intend to cause the death of the deceased. They did not harbour any intention to kill the deceased, they all negligently caused his death. Disposition. Accordingly, we are not satisfied that the State managed to prove its case beyond reasonable doubt, that the accused persons are guilty of Murder. They are all therefore found not guilty and acquitted of the crime of murder but guilty of the permissible verdict of culpable homicide in contravention of section 49 of the Code. SENTENCING JUDGEMENT. In the case of S v Wankie HH-831-15 this Court alluded to the guidelines which are useful to follow when sentencing offenders convicted of culpable homicide. It emphasized the need to properly assess an offender’s degree of negligence in causing the death when it said: “the greater reason why the specific degree of negligence must be established in a charge of culpable homicide is for the purposes of sentence. The more severe form of negligence there is the greater the penalty must be.” It follows therefore that in the present case the starting point is to assess the offenders’ degree of negligence. The degree of negligence is not assessed from the injuries sustained by the deceased or his ultimate death but from analysing the circumstances which occurred on the ground at the material time. We have already accepted that the incident occurred at night and it was very dark. The offenders acted out of misconception that the deceased was a smuggler. For that reason, there cannot be any debate that the offenders’ degree of negligence was on the ordinary scale.In coming up with an appropriate sentence in this matter this court will consider what has been mentioned in both mitigation and aggravations. In their pre-sentencing address to the court, the 1st offender said is aged thirty-five, married to one wife with two children aged nine and four. He is a bread winner. It was brought to the attention of this court that there was no premeditation prior to the offence. And that absence of intention works for the offender in mitigation. It was the recommendation of the defence counsel for 1st offender that three years would be appropriate sentence in the circumstances with twelve months suspended for five years.The counsel for the second offender stated that the 2nd offender is indeed a first offender. There was pre-trial incarceration of a month and that there was a gap of seven years from the day the offence was committed to when the matter is finalised. That he is thirty years old with three children, married and he has savings of $400US. The defence counsel recommends 320 hours of community service.The counsel for the third offender in mitigation mentioned that the offender is thirty-five years old. He is married with two minor children and that he has $500US in savings. He proposed a sentence of a fine of US$600.In aggravation, the State mentioned that indeed a life was lost. No Victim Impact Statement was produced in court. There was no provocation from deceased. In the state’s view all the accused never displayed any sign of remorse instead the three accused showed impunity that six years lapsed before this matter was heard in court. She argued that the three have been convicted of the same offence, therefore, they must equally receive same punishment because their level of negligence was higher they must be sentenced between five to eight years. This court assessing the totality of the evidence adduced during trial and in mitigation realized that the three accused falls under a special category of people in society. They are trained to keep peace and mostly, provide safety of the generality of people. The three offenders are aware as trained officers that the golden rule for the usage of firearms is if in doubt do not fire. Usage of firearms result in lethal effects. The witnesses including the deceased had gone to their shrine for prayers. As it stands, an innocent soul of a person who had gone to pray is no more. Life is a God given gift this is the reason why there is a specific provision in the highest law of the land to the constitution which protects the right to life. Because of the importance of a life which is given once and forever. The powers which this court use to have to sentence a convicted murderer to death is no longer available. The scrapping and removal of death penalty is an appreciation of the sanctity of life. This court therefore frowns at people who remove God given gift of life. In this case the mission of the offenders was to arrest smugglers in the event that they were smugglers. It has turned out there was nothing related to any smuggling that was taking place. The deceased died clinging on to his bible and a church stuff through the negligence of the accused. The sentence this court is going to deliver is such that a clear message must be sent to people out there that those who happen to be trained or those who happen to be in possession of fire arms legally they must never use them unless if it’s a war set up. This court will however take into consideration that all the three are first offenders and are family men who have been serving the nation. For this reason, this court will relieve a substantial period of imprisonment on condition that they will never be convicted of an offence involving violence as an element.A ccordingly, each offender is sentenced to 8 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition he does not within that period, commit any offence involving violence or the negligent killing of another for which he is sentence d to imprisonment without the option of a fine. Effective 5 years imprisonment. # SENTENCING JUDGEMENT. In the case of S v Wankie HH-831-15 this Court alluded to the guidelines which are useful to follow when sentencing offenders convicted of culpable homicide. It emphasized the need to properly assess an offender’s degree of negligence in causing the death when it said: “the greater reason why the specific degree of negligence must be established in a charge of culpable homicide is for the purposes of sentence. The more severe form of negligence there is the greater the penalty must be.” It follows therefore that in the present case the starting point is to assess the offenders’ degree of negligence. The degree of negligence is not assessed from the injuries sustained by the deceased or his ultimate death but from analysing the circumstances which occurred on the ground at the material time. We have already accepted that the incident occurred at night and it was very dark. The offenders acted out of misconception that the deceased was a smuggler. For that reason, there cannot be any debate that the offenders’ degree of negligence was on the ordinary scale. In coming up with an appropriate sentence in this matter this court will consider what has been mentioned in both mitigation and aggravations. In their pre-sentencing address to the court, the 1st offender said is aged thirty-five, married to one wife with two children aged nine and four. He is a bread winner. It was brought to the attention of this court that there was no premeditation prior to the offence. And that absence of intention works for the offender in mitigation. It was the recommendation of the defence counsel for 1st offender that three years would be appropriate sentence in the circumstances with twelve months suspended for five years. The counsel for the second offender stated that the 2nd offender is indeed a first offender. There was pre-trial incarceration of a month and that there was a gap of seven years from the day the offence was committed to when the matter is finalised. That he is thirty years old with three children, married and he has savings of $400US. The defence counsel recommends 320 hours of community service. The counsel for the third offender in mitigation mentioned that the offender is thirty-five years old. He is married with two minor children and that he has $500US in savings. He proposed a sentence of a fine of US$600. In aggravation, the State mentioned that indeed a life was lost. No Victim Impact Statement was produced in court. There was no provocation from deceased. In the state’s view all the accused never displayed any sign of remorse instead the three accused showed impunity that six years lapsed before this matter was heard in court. She argued that the three have been convicted of the same offence, therefore, they must equally receive same punishment because their level of negligence was higher they must be sentenced between five to eight years. This court assessing the totality of the evidence adduced during trial and in mitigation realized that the three accused falls under a special category of people in society. They are trained to keep peace and mostly, provide safety of the generality of people. The three offenders are aware as trained officers that the golden rule for the usage of firearms is if in doubt do not fire. Usage of firearms result in lethal effects. The witnesses including the deceased had gone to their shrine for prayers. As it stands, an innocent soul of a person who had gone to pray is no more. Life is a God given gift this is the reason why there is a specific provision in the highest law of the land to the constitution which protects the right to life. Because of the importance of a life which is given once and forever. The powers which this court use to have to sentence a convicted murderer to death is no longer available. The scrapping and removal of death penalty is an appreciation of the sanctity of life. This court therefore frowns at people who remove God given gift of life. In this case the mission of the offenders was to arrest smugglers in the event that they were smugglers. It has turned out there was nothing related to any smuggling that was taking place. The deceased died clinging on to his bible and a church stuff through the negligence of the accused. The sentence this court is going to deliver is such that a clear message must be sent to people out there that those who happen to be trained or those who happen to be in possession of fire arms legally they must never use them unless if it’s a war set up. This court will however take into consideration that all the three are first offenders and are family men who have been serving the nation. For this reason, this court will relieve a substantial period of imprisonment on condition that they will never be convicted of an offence involving violence as an element. A ccordingly, each offender is sentenced to 8 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition he does not within that period, commit any offence involving violence or the negligent killing of another for which he is sentence d to imprisonment without the option of a fine. Effective 5 years imprisonment. CHIVAYO J………………………………… National Prosecuting Authority, State’s legal practitioners Morris Davies, 1st accused’s legal practitioners Nyabawa Legal Practice, 2nd accused legal Pundu and Company, 3rd accused legal practitioners # CHIVAYO J………………………………… National Prosecuting Authority, State’s legal practitioners ## National Prosecuting Authority, State’s legal practitioners Morris Davies, 1st accused’s legal practitioners ## Morris Davies, 1st accused’s legal practitioners Nyabawa Legal Practice, 2nd accused legal Pundu and Company, 3rd accused legal practitioners ## Nyabawa Legal Practice, 2nd accused legal Pundu and Company, 3rd accused legal practitioners

Judgment

The state v Ngqabutho Khoza &2 others [2025] ZWBHC 26 (13 March 2025)

Headnotes

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The state v Ngqabutho Khoza &2 others [2025] ZWBHC 26 (13 March 2025)

Headnotes

Judgment

Similar Cases

Discussion