The State V Kudzai Bofuwero &1other [2025] ZWCHHC 14 (31 January 2025)

6 HCC 04/25 HCCR 859/24 THE STATE Versus KUDZAI BOFUWERO And TAVONGA MATINDIKE AKA TALEX MATINDIKE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI,31 January 2025 Assessors: 1. Mr. Kamanga 2. Dr Mashavave Criminal Trial N. A Sibesha, for the State N. Charehwa, for the 1st accused W. Sengweni, for the 2nd accused MUZOFA J: The two accused were initially jointly charged with one Ronnet Mthungameli Bhebhe who absconded. The State decided to proceed against the two accused and applied for a separation of trials. The two accused were charged with the murder of Tinashe Chinorwadza. The state alleged that they stabbed the deceased with a machete, an okapi knife and a columbian knife all over the body. According to the State, on 20 August 2018 at Appleyard Nightclub, Kadoma the accused together with Ronnet and deceased were playing a game commonly known as snooker around 0300 hours. A misunderstanding arose from a 50cents token which the deceased believed had won but was taken by the accused. The verbal dispute escalated to a physical confrontation. The accused acting in common purpose assaulted the deceased using knives and a machete all over the body resulting in his death. The State outline was produced by consent and marked annexure A. Both accused denied the offence. The 1st accused said he did not see the deceased on the day. As a member of that community, he passed through the restaurant to get some food after working in the mine. He was surprised when he was arrested on allegations that he had assaulted the deceased. In short, he professed ignorance about the alleged murder. The 1st accused’s defence outline was produced and marked annexure B. The 2nd accused also professed ignorance. He said he is not Tavonga Matindike but Talex Matindike. According to him his identical twin brother one Tavonga Matindike who was arrested in 2018 in connection with this offence may have committed the offence. When Tavonga was granted bail pending trial he absconded. In a case of mistaken identity he was arrested and the Police would not accept that he is not Tavonga but Talex. On his part he was not at Appleyard on the fateful day. He did not know the deceased. He also did not know his co accused until the day they were jointly charged by the Police. His defence outline was marked annexure C. The State Case The State produced the post mortem report and the sketch plan by consent. They were marked exhibit 1 and 2 respectively. The doctor who examined the deceased’s remains concluded that death was due to hypovolaemic shock, left and right lung ruptures, haemothorax stab wound. The weapons allegedly used in the commission of the offence, a brown and silver okapi knife marked exhibit 3, a machete marked exhibit 4 and a Columbian knife marked exhibit 7 were also produced by consent. A blue shirt with white crosses marked exhibit 5 and one left white boot marked exhibit 6 which the State alleged were worn by the 2nd accused when he committed the offence were produced. The 2nd accused’s birth record card marked exhibit 8 and a letter from Central Registry dated 22 February 2024 was also produced and marked exhibit 9. The evidence of two witnesses Valentine Kaseke and Olinda Chiname as summarised in the State case was formally admitted. Valentine, a government medical doctor certified the death of the deceased. Olinda, a police officer stationed at Norton Police Station was allocated the matter for investigation in February 2024. She drew up the sketch plan from indications by witnesses. She arrested the accused after they absconded while on bail. Four witnesses testified before the court. Jimmy Hwaira He resided in Norton and is an artisenal miner. He knew the two accused persons as artisenal miners. He worked with the 1st accused from 2009 to 2018. They grew up together in the same community. His childhood alias was Gonyeti due to his big head then. He worked with the 2nd accused from 2016 until his arrest. He resided in Chegutu but would travel to Norton for mining. On the fateful day he was at Appleyard Night Club “the Club” where he drank beer with fellow imbibers. The accused together with Ronnet and the deceased were playing a snooker game. Ronnet claimed a 50cents token which the deceased also claimed. They had a misunderstanding. He briefly left the snooker table and went to the counter to buy some beer. On his return the antagonists including the deceased had left the table. He decided to go outside the club to buy a cigarette. Outside the club he saw the accused assaulting the deceased. Accused one had an okapi knife that he used to stab the deceased. He tried to restrain them. Instead of heeding good advice, to his surprise the 1st accused turned on him and stabbed him once on the upper right eye. The 2nd accused also had a knife, Ronnet had a machete. After being stabbed, he fled from the scene. He hired a car to take him to the police station. At the police he could not get immediate help there was one police officer. He returned to the scene of crime where the accused were still assaulting the deceased. It took him 20 minutes to go to the police and back. Helpless, he remained in the car with the driver one Lincoln. The driver kept the headlights switched on. The 2nd accused approached them. Fearing for their lives they drove off, this time just around and back. On their return the second time, the accused had left. Together with others they assisted each other and placed the deceased in the car and took him to the hospital. He returned to the club. The 1st accused had also returned. He spoke to him and asked about deceased’s condition. The accused was not apologetic, he bragged that they had stabbed the deceased while brandishing his okapi knife. He invited the 1st accused for a beer drink. They went inside where he mobilised other patrons and arrested him. After making arrangements for his temporary custody at the bar pending arrival of the police, he left. Mr Charehwa for the 1st accused cross examined the witness on discrepancies between his statement to the police and his oral evidence. In his statement to the police, he said he did not know the accused yet in court he said he knew them prior to the offence. Some omissions were also highlighted, that he did not tell the police that he apprehended the 1st accused, that he saw the deceased leave the club and the accused followed. He was quizzed on the reasonableness of 1st accused’s alleged conduct, to run away from the scene then return. He insisted that the 1st accused was part of the people that caused the deceased’s death. Mr Sengweni for the 2nd accused also cross examined him. His thrust was initially to establish the witness’s ability to recount what transpired after drinking beer from 11pm to 3am. The witness was adamant that he was still in control of his mental capacity. This is why he could try to assist the deceased and eventually apprehend the 1st accused. In respect of the 2nd accused, he said he knew him as Tavonga, of course he had not seen his identification documents. He did not know much about his family or background although he would bring some young people to work in the shaft. He did not know if he had a twin brother but he was convinced that the 2nd accused was at the club and was involved in the death of the deceased. He admitted that no identification parade was conducted, but to him he already knew the 2nd accused there was no mistaken identity. Franco Mahachi He was a security guard at the Club. He did not know the accused nor the deceased prior to the commission of this offence. On this fateful day a young man who he later discovered was the deceased approached him inside the bar. He was complaining about a token that some people had taken from him. He advised the deceased to let it pass. Later he was advised by some women that someone was being assaulted outside. He went to investigate. There was some illumination from lights. He moved closer to the scene he saw the deceased being stabbed with a knife and a machete. He identified the assailants. He described one with short hair had a machete, 1st accused had a knife and the 2nd accused had an okapi knife. When he tried to restrain the accused, the 1st accused turned on him and tried to stab him. Ronnet had to calm him. He rushed to the police station. On return, the accused had left. The deceased was still breathing. He assisted in taking the deceased to the hospital. When he returned from the hospital, he was advised that one of the accused had been arrested. Under cross examination by Mr Charehwa he attempted to describe the accused, but he did not have enough details. He said one was tall, another had dreadlocks and another had a hat. He had no further details but he said he could identify them. He remembered the first accused who had a Columbian knife because he threatened to stab him. No identification parade was conducted. He was quizzed whether 1st accused had an okapi knife as indicated by Jimmy. His explanation was that this case took place long back, 2018 some 6 years ago, it could be a genuine mistake or just lapse of memory. Mr Sengweni briefly cross examined him. He confirmed that he did not see the 2nd accused in the club since there were many people. He insisted that outside he saw the 2nd accused with an okapi knife stabbing the deceased. Ronald Kakunguwo He was a police officer stationed at Norton. On the day in question, he was on duty. He received a report of assault at Appleyard Night Club. He teamed up with other police officers. They used a Fun cargo vehicle driven by one of the people who reported. At the scene of crime, they were shown the three assailants, one of them was the 2nd accused. At the time he was holding a beer bottle drinking beer. The others were just standing by. They chased the accused with the help of other patrons. They could not apprehend them. They returned to the scene of crime. The deceased was still alive. He was taken to hospital, unfortunately he passed on along the way. The following morning some people reported they had apprehended 1st accused at the club. He proceeded to the club and arrested him. He recovered a brown and silver okapi knife. The knife was produced by consent and marked exhibit 3. He took the 1st accused to Katanga Police Station. During the investigations, this time with the involvement of members of the Criminal Investigations Department, the 1st accused led them to Ronnet’s house. They arrested him and recovered a machete which was produced and marked exhibit 4. Further investigations led them to the 2nd accused’s residence in Katanga ward 7. The 2nd accused was in his room when he was arrested. The police had to scale the walls to gain entry into the room which had no ceiling and had openings on the roof. He had refused to open the door. Inside his room the officers recovered a columbian knife which was produced by consent and marked exhibit 7, a blue shirt with white crosses exhibit 5, one left side gumboot marked exhibit 6. At the time of recovery, it had blood stains. Before the court the blood stains were no longer visible due to lapse of time. Even if the blood stains were still there, they would be of little or no value since there was no proof that it was human blood and that it was the deceased’s blood for that matter. The recovered items were all handed over to the investigating officer Tembinkosi. Under cross examination by Mr Charehwa he confirmed that when the report was made, Tavonga’s name was mentioned, Jimmy was one of the people who reported. He did not know if an identification parade was conducted. When pressed on the recovery of the okapi knife which the 1st accused denied, he said the people who apprehended the 1st accused recovered the knife. It was handed to him by one Motsi. In essence he was unaware how the knife was recovered. A seizure form could therefore not be completed. He confirmed that Jimmy was part of the people that took deceased to the hospital. He insisted that those who knew the 1st accused apprehended him. Mr Sengweni also cross examined the witness. His thrust was to establish that the 2nd accused’s identical twin brother Talent Tavonga was the offender. When asked who they arrested in 2018, he said they arrested Talex Tavonga Matindike. He did not ask for any identification. The suspect gave him the name. He did not know about an identical twin brother. It was suggested to the witness that the 2nd accused is Talex Matindike. He was not Talent who committed the offence, this was denied. Tembinkosi Kagoni He was the police officer who eventually took over the investigations on 20 August 2018. He received the exhibits from Constable Kakunguwo. He recorded them in their exhibit book. He invited forensics to look into the exhibits since they had blood. They could not assist due to lack of resources. It is regrettable that lack of resources impedes gathering of vital and probably conclusive evidence. This is an area that the investigative departments must capacitate, it has numerous benefits. Our policing departments may consider embracing scientific methods to gather evidence. Invariably most of these murders that take place in the mining areas are committed using such weapons. That as it may be, he did not record statements from accused persons since they indicated that they wanted legal representation. The accused did not give a reason why they committed the offence but they apologised and asked for forgiveness. His cross examination revealed the inept investigations. He could not conclusively tell if the knife was recovered from 1st accused. No statement was recorded from Motsi who allegedly recovered the knife. He was only one year in service. He failed to do the elementary things in an investigation. No fingerprints, no identification parade held, the accused were not taken for indications. It is incomprehensible that the matter was taken to court and subsequently set down without that basic information. He did not verify the 2nd accused’s name. He used the name provided in the documents, Talent Tawonga Tinotenda Matindike. Talent had promised to submit his identification in 2018 he never did. After this witness, the State then closed its case. The Defence Case Kudzai Bofuwero He adopted his defence outline. He opted not to add nor subtract anything. He was briefly cross examined by the State counsel. He insisted that he did not know Jimmy Hwaira. He did not grow up in the same neighbourhood with him. Gonyeti was not his childhood alias. He did not work with him. On the fateful day he did not talk to Jimmy about the deceased. He was surprised when he was arrested when he got to Appleyard Club. He was arrested because he was an artisanal miner. He did not have a knife and the knife was not recovered from him. He had no explanation why Jimmy would profess to know him from childhood. He denied leading the police to Ronnet’s house. He said he did not know the 2nd accused at all. He said the police were falsely implicating him. He was born in Kutama. He relocated to Norton Cemetery houses at the age of 8 where he started his education. He was an artisanal miner at Ascot Mine Norton. After a few questions from Mr Sengweni, he simply denied knowing the 2nd accused the 1st accused’s case was closed. Tavonga Matindike He adopted his defence outline. Under cross examination he denied that he was an artisanal miner but a gold buyer. He said in 2018 he stayed in Chegutu but he never went to Norton. He persisted in his denial that he did not know his co-accused neither did he know the deceased. According to him he was born a twin with Tawonga and were identical twins. They were separated at birth. He was taken by his uncle and Tavonga remained with their mother. He said he obtained his birth certificate in 2006 yet his birth record was registered in 2022. He explained that the initial birth certificate was burnt and he obtained a copy at school. The letter from Civil Registry indicating that there was no twin registered to Tawonga was put to him. He explained that he did not know if Tavonga had registered. After his cross examination, Mr Sengweni intended to call the 2nd accused’s mother. Unfortunately, they could not secure her attendance the 2nd accused’s defence case was then closed. Closing Submissions The State’s closing submissions were brief. According to the State there was direct evidence, witnesses saw the accused stabbing the deceased. Jimmy knew the 1st accused from childhood and even knew his childhood alias, Gonyeti. Mahachi also identified the accused, 1st accused led the police to Ronnet who is on the run. A machete was recovered and the okapi knife. Similarly, the 2nd accused was known to Jimmy. The court was urged to dismiss the 2nd accused’s defence as a figment of his imagination. There was no record that he had a twin brother. We were also urged to reject the birth registration produced by the 2nd accused, it lacked authenticity and there were high probabilities that it was dubiously obtained. Further to that it was submitted that the, accused assaulted the deceased using lethal weapons. The cause of the dispute was a token. They lacked the actual intention but they foresaw that death may result but persisted in the conduct. They must be found guilty of murder with constructive intention. We comment in passing on the substance of the State’s closing submissions. The State did not address its mind to the apparent discrepancies in the witnesses’ evidence. Closing submissions must incorporate a detailed analysis of the evidence as a whole and the applicable law. It is disheartening that closing submissions can simply ignore pertinent issues and wish them away. For instance the State did not fully ventilate the circumstances surrounding the 2nd accused’s arrest. Was a warrant of arrest issued in this case? When was it issued and against who? How was the 2nd accused eventually arrested? 1st Accused’s Closing Submissions Detailed oral closing submissions were made on behalf of the 1st accused person. Mr Charehwa correctly identified the issue as identification of the assailants. It was submitted that, the deceased was attacked by three people was not in dispute. The issue is identity of the three assailants. A close analysis of evidence was made which I will relate to. It was submitted that Jimmy was not a credible witness. Jimmy was drunk on this day, he was drinking from 11pm to 0300 hours. Despite his professed knowledge of the 1st accused his evidence was glaringly inconsistent with other evidence. If he reported the case why is it no names were given to the police. The deceased was attacked in the dark visibility was poor, the assailants were putting on hats how did he identify them? He exaggerated the evidence. His evidence on 1st accused’s alias Gonyeti was disputed. Jimmy had nothing to offer the State case. In respect of the rest of the evidence. It was submitted that there was no evidence that the Okapi knife was recovered from the 1st accused. There was nothing to link the 1st accused to the offence he must be acquitted. 2nd Accused’s Closing Submissions In his written submissions Mr Sengweni focused on the identification of the 2nd accused. He did not delve on whether or not Jimmy’s identification of Tavonga Matindike was correct. His thrust was that the State indicted the wrong person, Jimmy identified Tavonga and before the court the State has Talex Matindike. There was no proof beyond a reasonable that the Court has the right person before it. It was not proved that the 2nd accused is Tavonga Matindike. No finger prints were taken to positively identify the 2nd accused, we were referred to the case of where the court noted that even an honest person can identify the wrong person with confidence. In the absence of conclusive proof that 2nd accused committed the offence then an acquittal should follow. Issues for determination The only issue for determination is the identity of the assailants. The factual issues of what transpired are not in dispute. Analysis As already stated, the factual background to this case is not disputed. The deceased was attacked by three male adults. He sustained injuries that subsequently led to his death. The only issue is the identity of the assailants. Kudzai Bofuwero There was direct evidence from Jimmy Hwaira who identified the two accused persons. His evidence must therefore be looked into closely. Was Jimmy a credible witness? Was his evidence corroborated by other evidence?. Was Jimmy a credible witness? Credibility of a witness depends on a number of factors that the Court must consider. The Court must look at consistency, is the witness consistent in his account of the events, and is the evidence consistent with the rest of the evidence before the Court. Bias, does the witness have some interest in the outcome of the case or other considerations that weight on him. The witness’ demeanour is another useful aspect, how the witness portrays himself on the witness stand and his mannerisms to certain questions. So it is useful for a Court to watch witnesses as they give evidence in court. Although demeanour on its own is not conclusive because it is relative to other factors like character, exposure and other personal idiosyncrasies peculiar to the witness. The intimidating Court atmosphere may also affect the witness’s demeanour. A witness’ demeanour must always be considered together with other factors. Corroboration, is the witness’ evidence corroborated by other witnesses or other objective evidence before the court. How the witness performs under cross examination is also important. This is the point where the witness’ evidence is tested for consistency and how the witness respondents is quite revealing. Jimmy said he knew both accused persons before the commission of the offence. On the fateful night he saw them playing a game of snooker in the club with the deceased. In the club there was lighting, he could therefore clearly see who was playing with the deceased. Franco the security guard said the deceased reported some misunderstanding about a token with the people he was playing with. The only reasonable inference is that the people who played with the deceased and altercated with him are the accused. However, the million-dollar question is, outside did the accused assault the deceased? Jimmy said there was some light from torches. Now could they see? The 1st accused did not deny that he resides in Norton. Jimmy said he worked with 1st accused from 2009 to 2018. So he knew him pretty well. Jimmy said he went to the police to report but could not find help. This issue was not pursued. Was there one police officer? What did they engage on, was anything written down? It is incomprehensible that nothing could have happened. Did Jimmy make a report to this one officer? The State chose to leave this open. Jimmy’s report must have identified the assailants there and then. Jimmy said the 1st accused stabbed him but there was no evidence that he reported the assault to the police, constable Kakunguwo said Jimmy was part of the people who reported the case. Tavonga’s name was mentioned. So the 1st accused’s name was not mentioned. If Jimmy reported why did he not identify the assailants by name? Interestingly, on his part Jimmy said he did not make a report, when he went to the Police he was not assisted. We were not told that at any other time he disclosed the names of the assailants. Jimmy appeared so confident if not over confident as he narrated his evidence. His demeanour was convincing that he knew both accused persons. Could this be a genuine mistake of a confident witness? It is possible to have a genuinely mistaken witness. See however, his narration of events was not consistent with evidence before us in respect of the 1st accused. The assailants ran away when the police arrived, in fact the police attempted to pursue them but were unsuccessful. It baffles the mind that after assaulting the deceased in the manner described and fleeing from the police, the 1st accused would return to the scene of crime. Jimmy said he met up with the 1st accused who bragged that he stabbed the deceased. Would a reasonable person return to the scene of crime where he committed an offence? Jimmy tried to explain this, he said the accused maybe did not anticipate death that’s why he returned. In our view, the bottom line is he must have known that he had committed an offence, would he simply walk back to be arrested? Jimmy’s identification of 1st accused is doubtful despite his confidence. There was no evidence to show that 1st accused started artisanal mining young such that he knew his childhood alias. He was cross examined on his statement to the police, where he said he did not know the accused prior to the commission of the offence. We also noted that in the summary of the State case it was recorded that he did not know the accused prior to the commission of the offence. Under cross examination he simply said he did not say that. The inconsistency was not reconciled. There was no explanation why the Police may have imputed that to him. The 1st accused’s arrest also poses challenges. Jimmy said he invited 1st accused for a drink and then arrested him. He left him with the club security personnel awaiting the arrival of the police. Those are the people who recovered the okapi knife from the accused. There was no conclusive evidence that the 1st accused had the knife. Constable Kakunguwo said the knife was handed to him by one Motsi. Motsi did not give evidence to confirm the recovery. Most crucially, the police could have sent the knife for forensic verification. This would have established if the accused did at any point have access to the knife. Murder is a serious offence and investigations must explore all avenues to make sure the right culprit is before the court. The State witnesses actually contradicted each other on who had the okapi knife. Franco said he had the Columbian knife. It is our finding that there was no evidence that the 1st accused had an okapi knife. Jimmy could not even describe the Okapi knife that he said the 1st accused showed him as he bragged about stabbing the deceased. Jimmy’s evidence on the identification of the 1st accused was weak it therefore required corroboration. Franco was another witness. He did not fair very well. He was emotional and shed tears while giving evidence. He did not know the accused and deceased. However, he observed a tall man with locks one had a hat. His identification to say the least was also weak. There was nothing substantive to relate to. The investigations were poorly done. The State also failed to properly prosecute its case. The police shockingly admitted that no warned and cautioned statements were recorded, no finger prints taken. The investigations could have explored further the accused’s defence had they recorded the warned and cautioned statement. 1st accused said he was not in the club at all. He was arrested when he went to the club for a meal. The Police could have investigated if he indeed conducted his mining at Ascot mine. We have doubts about 1st accused’s identification it must operate in his favour. Tavonga Matindike Jimmy said he knew Tavonga Matindike and he identified him. Two issues arise in respect of the 2nd accused, is he Tavonga, and then was he one of the assailants? As already set out Jimmy’s evidence on identification is not conclusive. It requires corroboration. We accept the Kakungwa’s evidence that Tavonga’s name was mentioned when the report was made. This corroborates Jimmy’s evidence that Tavonga was part of the group of people that assaulted the deceased. This is reason why Tavonga was arrested. Kakunguwo’s evidence on how Tavonga was arrested was not disputed. The recovered knife and shirt and left gumboot was all not denied. To his folly he thought that did not concern him. However it is trite that what is not denied is admitted. We are therefore satisfied that the State managed to prove that Tavonga was part of the assailants on the day. The next issue is whether before this Court we have the same Tavonga who was arrested in 2018, known to Jimmy and reported as one of the assailants. We have no doubt that before us is the said Tavonga and it is the accused. Indeed the accused has no onus to prove his defence as stated in numerous case and is the accepted position of the law. See the instructive dictum in R v Difford 1937 AD, S v Mapfumo and Others 1983 (1) ZLR 250 (SC). In this case the accused tried to prove his defence to his detriment. It was disproved in its totality and we reject it.. He produced a birth record card obtained in 2022. Surprisingly he said he had his birth registered in 2006 but the birth certificate was burnt. We were not told when it was burnt. He obtained another birth record later. It is inconceivable that the burnt birth certificate required another birth record card. The normal procedure is to just get a copy of the birth certificate. Why did he get a second birth registration if the birth was registered before? Could there be something that he wanted to conceal. The timing is also suspicious why after the accused was on bail. He said he was born a twin but the birth record did not indicate so. The 2nd accused forgot that details on the Birth Registration Card are recorded at the time of birth. So in this case they were recorded at Sanyati Hospital. His explanation that they were separated at birth did not have any effect on the fact of registration at the time of birth. They must have been together by then. The Birth Record he produced before the Court actually betrayed him. The letter from Central Registry destroyed what could have remained of his defence. It confirmed that there is no twin for Talex Matindike recorded in the country. It gave a chronology of people known as Tavonga Matindike registered in this country. The first Tavonga Matindike was born 5 June 1994 in Masvingo he died in February 2018 due to a road accident. This one was not Talent or Talex’s twin since he did not share the same date of birth. The second set was Talent Matindike born 28 January 2010 and Talent Tinotenda Matindike born 15 December 2015 are recorded and they are not Telex’s twin brothers. As correctly pointed by the State the accused had not have the actual intention to cause the deceased’s death. However the fact that the 2nd accused in the company of two others attacked the deceased with lethal weapons two knives and a machete death was foreseeable. Is was a group attack. The accused reconciled with the possibility of death. Accordingly the following is the verdict. Accused 1 – Not guilty and acquitted. Accused 2 guilty of murder with constructive intention. Sentencing Judgment We have found the accused guilty of murder. The offence was committed by three people against the deceased. There was no evidence that the deceased was armed or even retaliated. The court will consider that the accused is a first offender with family responsibilities. He belatedly tendered an apology through his legal practitioner and expressed his willingness to pay any compensation if required. What is disconcerting about the contrition is that despite his knowledge that he committed the offence, according to the deceased’s father he did not contribute anything towards the funeral or even send representatives to pay their condolences. His apology came a way too late. The accused’s conduct after the commission of the offence towards the bereaved family shows his attitude whether he is contrite or not. In S v Katsande HH263/24 the accused simply disappeared and did not even attend the funeral the Court considered it as a pointer to his nonchalance. The deceased’s father gave evidence on behalf of the family on the impact of the offence. As parents he said they were emotionally affected. The deceased was their last born, not yet married, a young life taken for a 50 cent token. We were advised that the deceased’s mother has chronic emotional bouts particularly when she receives information of a death. She mourns the deceased at every funeral she attends. The offence was committed in a public place where people were drinking beer. It became a public spectacle that the deceased was attacked at the Club. Very dangerous weapons were used in the commission of the offence. The injuries on the post mortem confirm the callous murder. It was a prolonged attack as Jimmy went to the Police Station and returned and the accused were still assaulting the deceased. Even after stabbing the deceased they fled and did not assist the deceased. The offence was committed in aggravating circumstances. Deceased was attacked by armed people. He was at a disadvantage. The State referred us to the case of S v Tonderai Ngulube HB 141/18 where the deceased was attacked by two individuals outside a nightclub. He died as a result of the stab wounds. Accused were in their 20s and were sentenced to 25 years. Each case must be determined on its facts. We considered that life was needlessly lost for a minor misunderstanding that could have been amicably resolved. Life lost cannot be restored. No sentence can make up for life. The accused was in custody for a brief period. The justice delivery system does not purport to restore life but it punishes offenders which also acts as a deterrence. In such cases a custodial sentence is the only appropriate sentence. The accused is sentence as follows: 21 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Murisi & Associates, the 1st accused’s Pro deo Legal Practitioners Legal Aid Directorate, the 2nd accused’s Legal Practitioners 6 HCC 04/25 HCCR 859/24 6 HCC 04/25 HCCR 859/24 THE STATE Versus KUDZAI BOFUWERO And TAVONGA MATINDIKE AKA TALEX MATINDIKE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI,31 January 2025 Assessors: 1. Mr. Kamanga 2. Dr Mashavave Criminal Trial N. A Sibesha, for the State N. Charehwa, for the 1st accused W. Sengweni, for the 2nd accused MUZOFA J: The two accused were initially jointly charged with one Ronnet Mthungameli Bhebhe who absconded. The State decided to proceed against the two accused and applied for a separation of trials. The two accused were charged with the murder of Tinashe Chinorwadza. The state alleged that they stabbed the deceased with a machete, an okapi knife and a columbian knife all over the body. According to the State, on 20 August 2018 at Appleyard Nightclub, Kadoma the accused together with Ronnet and deceased were playing a game commonly known as snooker around 0300 hours. A misunderstanding arose from a 50cents token which the deceased believed had won but was taken by the accused. The verbal dispute escalated to a physical confrontation. The accused acting in common purpose assaulted the deceased using knives and a machete all over the body resulting in his death. The State outline was produced by consent and marked annexure A. Both accused denied the offence. The 1st accused said he did not see the deceased on the day. As a member of that community, he passed through the restaurant to get some food after working in the mine. He was surprised when he was arrested on allegations that he had assaulted the deceased. In short, he professed ignorance about the alleged murder. The 1st accused’s defence outline was produced and marked annexure B. The 2nd accused also professed ignorance. He said he is not Tavonga Matindike but Talex Matindike. According to him his identical twin brother one Tavonga Matindike who was arrested in 2018 in connection with this offence may have committed the offence. When Tavonga was granted bail pending trial he absconded. In a case of mistaken identity he was arrested and the Police would not accept that he is not Tavonga but Talex. On his part he was not at Appleyard on the fateful day. He did not know the deceased. He also did not know his co accused until the day they were jointly charged by the Police. His defence outline was marked annexure C. The State Case The State produced the post mortem report and the sketch plan by consent. They were marked exhibit 1 and 2 respectively. The doctor who examined the deceased’s remains concluded that death was due to hypovolaemic shock, left and right lung ruptures, haemothorax stab wound. The weapons allegedly used in the commission of the offence, a brown and silver okapi knife marked exhibit 3, a machete marked exhibit 4 and a Columbian knife marked exhibit 7 were also produced by consent. A blue shirt with white crosses marked exhibit 5 and one left white boot marked exhibit 6 which the State alleged were worn by the 2nd accused when he committed the offence were produced. The 2nd accused’s birth record card marked exhibit 8 and a letter from Central Registry dated 22 February 2024 was also produced and marked exhibit 9. The evidence of two witnesses Valentine Kaseke and Olinda Chiname as summarised in the State case was formally admitted. Valentine, a government medical doctor certified the death of the deceased. Olinda, a police officer stationed at Norton Police Station was allocated the matter for investigation in February 2024. She drew up the sketch plan from indications by witnesses. She arrested the accused after they absconded while on bail. Four witnesses testified before the court. Jimmy Hwaira He resided in Norton and is an artisenal miner. He knew the two accused persons as artisenal miners. He worked with the 1st accused from 2009 to 2018. They grew up together in the same community. His childhood alias was Gonyeti due to his big head then. He worked with the 2nd accused from 2016 until his arrest. He resided in Chegutu but would travel to Norton for mining. On the fateful day he was at Appleyard Night Club “the Club” where he drank beer with fellow imbibers. The accused together with Ronnet and the deceased were playing a snooker game. Ronnet claimed a 50cents token which the deceased also claimed. They had a misunderstanding. He briefly left the snooker table and went to the counter to buy some beer. On his return the antagonists including the deceased had left the table. He decided to go outside the club to buy a cigarette. Outside the club he saw the accused assaulting the deceased. Accused one had an okapi knife that he used to stab the deceased. He tried to restrain them. Instead of heeding good advice, to his surprise the 1st accused turned on him and stabbed him once on the upper right eye. The 2nd accused also had a knife, Ronnet had a machete. After being stabbed, he fled from the scene. He hired a car to take him to the police station. At the police he could not get immediate help there was one police officer. He returned to the scene of crime where the accused were still assaulting the deceased. It took him 20 minutes to go to the police and back. Helpless, he remained in the car with the driver one Lincoln. The driver kept the headlights switched on. The 2nd accused approached them. Fearing for their lives they drove off, this time just around and back. On their return the second time, the accused had left. Together with others they assisted each other and placed the deceased in the car and took him to the hospital. He returned to the club. The 1st accused had also returned. He spoke to him and asked about deceased’s condition. The accused was not apologetic, he bragged that they had stabbed the deceased while brandishing his okapi knife. He invited the 1st accused for a beer drink. They went inside where he mobilised other patrons and arrested him. After making arrangements for his temporary custody at the bar pending arrival of the police, he left. Mr Charehwa for the 1st accused cross examined the witness on discrepancies between his statement to the police and his oral evidence. In his statement to the police, he said he did not know the accused yet in court he said he knew them prior to the offence. Some omissions were also highlighted, that he did not tell the police that he apprehended the 1st accused, that he saw the deceased leave the club and the accused followed. He was quizzed on the reasonableness of 1st accused’s alleged conduct, to run away from the scene then return. He insisted that the 1st accused was part of the people that caused the deceased’s death. Mr Sengweni for the 2nd accused also cross examined him. His thrust was initially to establish the witness’s ability to recount what transpired after drinking beer from 11pm to 3am. The witness was adamant that he was still in control of his mental capacity. This is why he could try to assist the deceased and eventually apprehend the 1st accused. In respect of the 2nd accused, he said he knew him as Tavonga, of course he had not seen his identification documents. He did not know much about his family or background although he would bring some young people to work in the shaft. He did not know if he had a twin brother but he was convinced that the 2nd accused was at the club and was involved in the death of the deceased. He admitted that no identification parade was conducted, but to him he already knew the 2nd accused there was no mistaken identity. Franco Mahachi He was a security guard at the Club. He did not know the accused nor the deceased prior to the commission of this offence. On this fateful day a young man who he later discovered was the deceased approached him inside the bar. He was complaining about a token that some people had taken from him. He advised the deceased to let it pass. Later he was advised by some women that someone was being assaulted outside. He went to investigate. There was some illumination from lights. He moved closer to the scene he saw the deceased being stabbed with a knife and a machete. He identified the assailants. He described one with short hair had a machete, 1st accused had a knife and the 2nd accused had an okapi knife. When he tried to restrain the accused, the 1st accused turned on him and tried to stab him. Ronnet had to calm him. He rushed to the police station. On return, the accused had left. The deceased was still breathing. He assisted in taking the deceased to the hospital. When he returned from the hospital, he was advised that one of the accused had been arrested. Under cross examination by Mr Charehwa he attempted to describe the accused, but he did not have enough details. He said one was tall, another had dreadlocks and another had a hat. He had no further details but he said he could identify them. He remembered the first accused who had a Columbian knife because he threatened to stab him. No identification parade was conducted. He was quizzed whether 1st accused had an okapi knife as indicated by Jimmy. His explanation was that this case took place long back, 2018 some 6 years ago, it could be a genuine mistake or just lapse of memory. Mr Sengweni briefly cross examined him. He confirmed that he did not see the 2nd accused in the club since there were many people. He insisted that outside he saw the 2nd accused with an okapi knife stabbing the deceased. Ronald Kakunguwo He was a police officer stationed at Norton. On the day in question, he was on duty. He received a report of assault at Appleyard Night Club. He teamed up with other police officers. They used a Fun cargo vehicle driven by one of the people who reported. At the scene of crime, they were shown the three assailants, one of them was the 2nd accused. At the time he was holding a beer bottle drinking beer. The others were just standing by. They chased the accused with the help of other patrons. They could not apprehend them. They returned to the scene of crime. The deceased was still alive. He was taken to hospital, unfortunately he passed on along the way. The following morning some people reported they had apprehended 1st accused at the club. He proceeded to the club and arrested him. He recovered a brown and silver okapi knife. The knife was produced by consent and marked exhibit 3. He took the 1st accused to Katanga Police Station. During the investigations, this time with the involvement of members of the Criminal Investigations Department, the 1st accused led them to Ronnet’s house. They arrested him and recovered a machete which was produced and marked exhibit 4. Further investigations led them to the 2nd accused’s residence in Katanga ward 7. The 2nd accused was in his room when he was arrested. The police had to scale the walls to gain entry into the room which had no ceiling and had openings on the roof. He had refused to open the door. Inside his room the officers recovered a columbian knife which was produced by consent and marked exhibit 7, a blue shirt with white crosses exhibit 5, one left side gumboot marked exhibit 6. At the time of recovery, it had blood stains. Before the court the blood stains were no longer visible due to lapse of time. Even if the blood stains were still there, they would be of little or no value since there was no proof that it was human blood and that it was the deceased’s blood for that matter. The recovered items were all handed over to the investigating officer Tembinkosi. Under cross examination by Mr Charehwa he confirmed that when the report was made, Tavonga’s name was mentioned, Jimmy was one of the people who reported. He did not know if an identification parade was conducted. When pressed on the recovery of the okapi knife which the 1st accused denied, he said the people who apprehended the 1st accused recovered the knife. It was handed to him by one Motsi. In essence he was unaware how the knife was recovered. A seizure form could therefore not be completed. He confirmed that Jimmy was part of the people that took deceased to the hospital. He insisted that those who knew the 1st accused apprehended him. Mr Sengweni also cross examined the witness. His thrust was to establish that the 2nd accused’s identical twin brother Talent Tavonga was the offender. When asked who they arrested in 2018, he said they arrested Talex Tavonga Matindike. He did not ask for any identification. The suspect gave him the name. He did not know about an identical twin brother. It was suggested to the witness that the 2nd accused is Talex Matindike. He was not Talent who committed the offence, this was denied. Tembinkosi Kagoni He was the police officer who eventually took over the investigations on 20 August 2018. He received the exhibits from Constable Kakunguwo. He recorded them in their exhibit book. He invited forensics to look into the exhibits since they had blood. They could not assist due to lack of resources. It is regrettable that lack of resources impedes gathering of vital and probably conclusive evidence. This is an area that the investigative departments must capacitate, it has numerous benefits. Our policing departments may consider embracing scientific methods to gather evidence. Invariably most of these murders that take place in the mining areas are committed using such weapons. That as it may be, he did not record statements from accused persons since they indicated that they wanted legal representation. The accused did not give a reason why they committed the offence but they apologised and asked for forgiveness. His cross examination revealed the inept investigations. He could not conclusively tell if the knife was recovered from 1st accused. No statement was recorded from Motsi who allegedly recovered the knife. He was only one year in service. He failed to do the elementary things in an investigation. No fingerprints, no identification parade held, the accused were not taken for indications. It is incomprehensible that the matter was taken to court and subsequently set down without that basic information. He did not verify the 2nd accused’s name. He used the name provided in the documents, Talent Tawonga Tinotenda Matindike. Talent had promised to submit his identification in 2018 he never did. After this witness, the State then closed its case. The Defence Case Kudzai Bofuwero He adopted his defence outline. He opted not to add nor subtract anything. He was briefly cross examined by the State counsel. He insisted that he did not know Jimmy Hwaira. He did not grow up in the same neighbourhood with him. Gonyeti was not his childhood alias. He did not work with him. On the fateful day he did not talk to Jimmy about the deceased. He was surprised when he was arrested when he got to Appleyard Club. He was arrested because he was an artisanal miner. He did not have a knife and the knife was not recovered from him. He had no explanation why Jimmy would profess to know him from childhood. He denied leading the police to Ronnet’s house. He said he did not know the 2nd accused at all. He said the police were falsely implicating him. He was born in Kutama. He relocated to Norton Cemetery houses at the age of 8 where he started his education. He was an artisanal miner at Ascot Mine Norton. After a few questions from Mr Sengweni, he simply denied knowing the 2nd accused the 1st accused’s case was closed. Tavonga Matindike He adopted his defence outline. Under cross examination he denied that he was an artisanal miner but a gold buyer. He said in 2018 he stayed in Chegutu but he never went to Norton. He persisted in his denial that he did not know his co-accused neither did he know the deceased. According to him he was born a twin with Tawonga and were identical twins. They were separated at birth. He was taken by his uncle and Tavonga remained with their mother. He said he obtained his birth certificate in 2006 yet his birth record was registered in 2022. He explained that the initial birth certificate was burnt and he obtained a copy at school. The letter from Civil Registry indicating that there was no twin registered to Tawonga was put to him. He explained that he did not know if Tavonga had registered. After his cross examination, Mr Sengweni intended to call the 2nd accused’s mother. Unfortunately, they could not secure her attendance the 2nd accused’s defence case was then closed. Closing Submissions The State’s closing submissions were brief. According to the State there was direct evidence, witnesses saw the accused stabbing the deceased. Jimmy knew the 1st accused from childhood and even knew his childhood alias, Gonyeti. Mahachi also identified the accused, 1st accused led the police to Ronnet who is on the run. A machete was recovered and the okapi knife. Similarly, the 2nd accused was known to Jimmy. The court was urged to dismiss the 2nd accused’s defence as a figment of his imagination. There was no record that he had a twin brother. We were also urged to reject the birth registration produced by the 2nd accused, it lacked authenticity and there were high probabilities that it was dubiously obtained. Further to that it was submitted that the, accused assaulted the deceased using lethal weapons. The cause of the dispute was a token. They lacked the actual intention but they foresaw that death may result but persisted in the conduct. They must be found guilty of murder with constructive intention. We comment in passing on the substance of the State’s closing submissions. The State did not address its mind to the apparent discrepancies in the witnesses’ evidence. Closing submissions must incorporate a detailed analysis of the evidence as a whole and the applicable law. It is disheartening that closing submissions can simply ignore pertinent issues and wish them away. For instance the State did not fully ventilate the circumstances surrounding the 2nd accused’s arrest. Was a warrant of arrest issued in this case? When was it issued and against who? How was the 2nd accused eventually arrested? 1st Accused’s Closing Submissions Detailed oral closing submissions were made on behalf of the 1st accused person. Mr Charehwa correctly identified the issue as identification of the assailants. It was submitted that, the deceased was attacked by three people was not in dispute. The issue is identity of the three assailants. A close analysis of evidence was made which I will relate to. It was submitted that Jimmy was not a credible witness. Jimmy was drunk on this day, he was drinking from 11pm to 0300 hours. Despite his professed knowledge of the 1st accused his evidence was glaringly inconsistent with other evidence. If he reported the case why is it no names were given to the police. The deceased was attacked in the dark visibility was poor, the assailants were putting on hats how did he identify them? He exaggerated the evidence. His evidence on 1st accused’s alias Gonyeti was disputed. Jimmy had nothing to offer the State case. In respect of the rest of the evidence. It was submitted that there was no evidence that the Okapi knife was recovered from the 1st accused. There was nothing to link the 1st accused to the offence he must be acquitted. 2nd Accused’s Closing Submissions In his written submissions Mr Sengweni focused on the identification of the 2nd accused. He did not delve on whether or not Jimmy’s identification of Tavonga Matindike was correct. His thrust was that the State indicted the wrong person, Jimmy identified Tavonga and before the court the State has Talex Matindike. There was no proof beyond a reasonable that the Court has the right person before it. It was not proved that the 2nd accused is Tavonga Matindike. No finger prints were taken to positively identify the 2nd accused, we were referred to the case of where the court noted that even an honest person can identify the wrong person with confidence. In the absence of conclusive proof that 2nd accused committed the offence then an acquittal should follow. Issues for determination The only issue for determination is the identity of the assailants. The factual issues of what transpired are not in dispute. Analysis As already stated, the factual background to this case is not disputed. The deceased was attacked by three male adults. He sustained injuries that subsequently led to his death. The only issue is the identity of the assailants. Kudzai Bofuwero There was direct evidence from Jimmy Hwaira who identified the two accused persons. His evidence must therefore be looked into closely. Was Jimmy a credible witness? Was his evidence corroborated by other evidence?. Was Jimmy a credible witness? Credibility of a witness depends on a number of factors that the Court must consider. The Court must look at consistency, is the witness consistent in his account of the events, and is the evidence consistent with the rest of the evidence before the Court. Bias, does the witness have some interest in the outcome of the case or other considerations that weight on him. The witness’ demeanour is another useful aspect, how the witness portrays himself on the witness stand and his mannerisms to certain questions. So it is useful for a Court to watch witnesses as they give evidence in court. Although demeanour on its own is not conclusive because it is relative to other factors like character, exposure and other personal idiosyncrasies peculiar to the witness. The intimidating Court atmosphere may also affect the witness’s demeanour. A witness’ demeanour must always be considered together with other factors. Corroboration, is the witness’ evidence corroborated by other witnesses or other objective evidence before the court. How the witness performs under cross examination is also important. This is the point where the witness’ evidence is tested for consistency and how the witness respondents is quite revealing. Jimmy said he knew both accused persons before the commission of the offence. On the fateful night he saw them playing a game of snooker in the club with the deceased. In the club there was lighting, he could therefore clearly see who was playing with the deceased. Franco the security guard said the deceased reported some misunderstanding about a token with the people he was playing with. The only reasonable inference is that the people who played with the deceased and altercated with him are the accused. However, the million-dollar question is, outside did the accused assault the deceased? Jimmy said there was some light from torches. Now could they see? The 1st accused did not deny that he resides in Norton. Jimmy said he worked with 1st accused from 2009 to 2018. So he knew him pretty well. Jimmy said he went to the police to report but could not find help. This issue was not pursued. Was there one police officer? What did they engage on, was anything written down? It is incomprehensible that nothing could have happened. Did Jimmy make a report to this one officer? The State chose to leave this open. Jimmy’s report must have identified the assailants there and then. Jimmy said the 1st accused stabbed him but there was no evidence that he reported the assault to the police, constable Kakunguwo said Jimmy was part of the people who reported the case. Tavonga’s name was mentioned. So the 1st accused’s name was not mentioned. If Jimmy reported why did he not identify the assailants by name? Interestingly, on his part Jimmy said he did not make a report, when he went to the Police he was not assisted. We were not told that at any other time he disclosed the names of the assailants. Jimmy appeared so confident if not over confident as he narrated his evidence. His demeanour was convincing that he knew both accused persons. Could this be a genuine mistake of a confident witness? It is possible to have a genuinely mistaken witness. See however, his narration of events was not consistent with evidence before us in respect of the 1st accused. The assailants ran away when the police arrived, in fact the police attempted to pursue them but were unsuccessful. It baffles the mind that after assaulting the deceased in the manner described and fleeing from the police, the 1st accused would return to the scene of crime. Jimmy said he met up with the 1st accused who bragged that he stabbed the deceased. Would a reasonable person return to the scene of crime where he committed an offence? Jimmy tried to explain this, he said the accused maybe did not anticipate death that’s why he returned. In our view, the bottom line is he must have known that he had committed an offence, would he simply walk back to be arrested? Jimmy’s identification of 1st accused is doubtful despite his confidence. There was no evidence to show that 1st accused started artisanal mining young such that he knew his childhood alias. He was cross examined on his statement to the police, where he said he did not know the accused prior to the commission of the offence. We also noted that in the summary of the State case it was recorded that he did not know the accused prior to the commission of the offence. Under cross examination he simply said he did not say that. The inconsistency was not reconciled. There was no explanation why the Police may have imputed that to him. The 1st accused’s arrest also poses challenges. Jimmy said he invited 1st accused for a drink and then arrested him. He left him with the club security personnel awaiting the arrival of the police. Those are the people who recovered the okapi knife from the accused. There was no conclusive evidence that the 1st accused had the knife. Constable Kakunguwo said the knife was handed to him by one Motsi. Motsi did not give evidence to confirm the recovery. Most crucially, the police could have sent the knife for forensic verification. This would have established if the accused did at any point have access to the knife. Murder is a serious offence and investigations must explore all avenues to make sure the right culprit is before the court. The State witnesses actually contradicted each other on who had the okapi knife. Franco said he had the Columbian knife. It is our finding that there was no evidence that the 1st accused had an okapi knife. Jimmy could not even describe the Okapi knife that he said the 1st accused showed him as he bragged about stabbing the deceased. Jimmy’s evidence on the identification of the 1st accused was weak it therefore required corroboration. Franco was another witness. He did not fair very well. He was emotional and shed tears while giving evidence. He did not know the accused and deceased. However, he observed a tall man with locks one had a hat. His identification to say the least was also weak. There was nothing substantive to relate to. The investigations were poorly done. The State also failed to properly prosecute its case. The police shockingly admitted that no warned and cautioned statements were recorded, no finger prints taken. The investigations could have explored further the accused’s defence had they recorded the warned and cautioned statement. 1st accused said he was not in the club at all. He was arrested when he went to the club for a meal. The Police could have investigated if he indeed conducted his mining at Ascot mine. We have doubts about 1st accused’s identification it must operate in his favour. Tavonga Matindike Jimmy said he knew Tavonga Matindike and he identified him. Two issues arise in respect of the 2nd accused, is he Tavonga, and then was he one of the assailants? As already set out Jimmy’s evidence on identification is not conclusive. It requires corroboration. We accept the Kakungwa’s evidence that Tavonga’s name was mentioned when the report was made. This corroborates Jimmy’s evidence that Tavonga was part of the group of people that assaulted the deceased. This is reason why Tavonga was arrested. Kakunguwo’s evidence on how Tavonga was arrested was not disputed. The recovered knife and shirt and left gumboot was all not denied. To his folly he thought that did not concern him. However it is trite that what is not denied is admitted. We are therefore satisfied that the State managed to prove that Tavonga was part of the assailants on the day. The next issue is whether before this Court we have the same Tavonga who was arrested in 2018, known to Jimmy and reported as one of the assailants. We have no doubt that before us is the said Tavonga and it is the accused. Indeed the accused has no onus to prove his defence as stated in numerous case and is the accepted position of the law. See the instructive dictum in R v Difford 1937 AD, S v Mapfumo and Others 1983 (1) ZLR 250 (SC). In this case the accused tried to prove his defence to his detriment. It was disproved in its totality and we reject it.. He produced a birth record card obtained in 2022. Surprisingly he said he had his birth registered in 2006 but the birth certificate was burnt. We were not told when it was burnt. He obtained another birth record later. It is inconceivable that the burnt birth certificate required another birth record card. The normal procedure is to just get a copy of the birth certificate. Why did he get a second birth registration if the birth was registered before? Could there be something that he wanted to conceal. The timing is also suspicious why after the accused was on bail. He said he was born a twin but the birth record did not indicate so. The 2nd accused forgot that details on the Birth Registration Card are recorded at the time of birth. So in this case they were recorded at Sanyati Hospital. His explanation that they were separated at birth did not have any effect on the fact of registration at the time of birth. They must have been together by then. The Birth Record he produced before the Court actually betrayed him. The letter from Central Registry destroyed what could have remained of his defence. It confirmed that there is no twin for Talex Matindike recorded in the country. It gave a chronology of people known as Tavonga Matindike registered in this country. The first Tavonga Matindike was born 5 June 1994 in Masvingo he died in February 2018 due to a road accident. This one was not Talent or Talex’s twin since he did not share the same date of birth. The second set was Talent Matindike born 28 January 2010 and Talent Tinotenda Matindike born 15 December 2015 are recorded and they are not Telex’s twin brothers. As correctly pointed by the State the accused had not have the actual intention to cause the deceased’s death. However the fact that the 2nd accused in the company of two others attacked the deceased with lethal weapons two knives and a machete death was foreseeable. Is was a group attack. The accused reconciled with the possibility of death. Accordingly the following is the verdict. Accused 1 – Not guilty and acquitted. Accused 2 guilty of murder with constructive intention. Sentencing Judgment We have found the accused guilty of murder. The offence was committed by three people against the deceased. There was no evidence that the deceased was armed or even retaliated. The court will consider that the accused is a first offender with family responsibilities. He belatedly tendered an apology through his legal practitioner and expressed his willingness to pay any compensation if required. What is disconcerting about the contrition is that despite his knowledge that he committed the offence, according to the deceased’s father he did not contribute anything towards the funeral or even send representatives to pay their condolences. His apology came a way too late. The accused’s conduct after the commission of the offence towards the bereaved family shows his attitude whether he is contrite or not. In S v Katsande HH263/24 the accused simply disappeared and did not even attend the funeral the Court considered it as a pointer to his nonchalance. The deceased’s father gave evidence on behalf of the family on the impact of the offence. As parents he said they were emotionally affected. The deceased was their last born, not yet married, a young life taken for a 50 cent token. We were advised that the deceased’s mother has chronic emotional bouts particularly when she receives information of a death. She mourns the deceased at every funeral she attends. The offence was committed in a public place where people were drinking beer. It became a public spectacle that the deceased was attacked at the Club. Very dangerous weapons were used in the commission of the offence. The injuries on the post mortem confirm the callous murder. It was a prolonged attack as Jimmy went to the Police Station and returned and the accused were still assaulting the deceased. Even after stabbing the deceased they fled and did not assist the deceased. The offence was committed in aggravating circumstances. Deceased was attacked by armed people. He was at a disadvantage. The State referred us to the case of S v Tonderai Ngulube HB 141/18 where the deceased was attacked by two individuals outside a nightclub. He died as a result of the stab wounds. Accused were in their 20s and were sentenced to 25 years. Each case must be determined on its facts. We considered that life was needlessly lost for a minor misunderstanding that could have been amicably resolved. Life lost cannot be restored. No sentence can make up for life. The accused was in custody for a brief period. The justice delivery system does not purport to restore life but it punishes offenders which also acts as a deterrence. In such cases a custodial sentence is the only appropriate sentence. The accused is sentence as follows: 21 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Murisi & Associates, the 1st accused’s Pro deo Legal Practitioners Legal Aid Directorate, the 2nd accused’s Legal Practitioners