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Judgment

8 HH 217 - 25 HCHR 3722/24 THE STATE versus LUCKSON JONGA and PARTSON JONGA and SANUART CHITUTE and TENDAI MAFORO and INNOCENT CHIKAVA and DOUGLAS BOB HIGH COURT OF ZIMBABWE M UCHAWA J HARARE: 19 & 20 November, 2, 3 & 5 December 2024, 24 & 25 February 2025, 26 March 2025 Assessors: Mr Mhandu Mrs Chitsiga Criminal Trial D.H Chesa, for the State S Banda with C Makorokotera, for all the accused persons MUCHAWA J: Introduction The accused persons were arraigned before this Court to answer to a charge of murder. It is alleged that on 5 January 2021 at Mukaradzi Gold Panning Site, Mt Darwin, the accused one or more or all of them, unlawfully and with an intent to kill, assaulted Donaldson Chakwitisa all over the body with stones thereby causing injuries from which he then and there died. In detail, the State alleged that all the accused persons are employees of Roy Rama Mining Syndicate located in Mukaradzi, Mt Darwin. The deceased was employed at Makaha Mining Syndicate, Mt Darwin. On the 5th of January 2021 and at around 0500 hours, the deceased and his workmates were resting in a motor vehicle parked by the guard room to their mine. The accused c ame armed with stones, machetes and iron bars. They started throwing stones at the motor vehicle and its occupants. The deceased and his workmates jumped out of the vehicle and stood at a distance. They watched the accused hack and pelt with machetes and stones, a dog tied at the g uardroom, to death. After that, they charged towards the deceased and his mates. They tried to run away but the deceased was caught about two kilometers from the guardroom. The accused struck the deceased all over the body with stones until he died. A post mortem examination established the cause of death as head injury as per Doctor Walter Nyazondo. In their defence outline, the six accused persons denied ever jointly or severally assaulting the deceased unlawfully and with intent to kill as alleged or at all and put the State to the strictest proof thereof. Their narration of events is that on 5 January 2021, they were mining a shaft in the Mukaradzi area owned by Mr Kaseke when they heard noises of a mob shouting. They set out to investigate and found a mob of artisanal gold miners circled around and assaulting six individuals whom they were accusing of being machete gangs “Mashurugwi”. They claim to have successfully restrained the mob from further assaulting the six individuals whom they ferried to Mt Darwin Police Station where a report was made and thereafter to Mt Darwin Hospital for medical treatment. The accused persons further claim to have learnt later in the day that one of the victims of the mob attack had been found dead near the Mukaradzi area. The sixth accused person stated that he had in fact been confronted by a machete wielding gang of about fifteen people, earlier on but had managed to escape. He had averred that it was on later that day the gang were then attacked by a mob of artisanal miners in the Mukaradzi area who had teamed up against them and overpowered them. In short, the accused persons denied ever assaulting or acting in common purpose with the mob that assaulted the deceased and his colleagues as alleged or at all. Their only involvement was to restrain the attack, which they did successfully and then assisted the injured people as stated above. Additionally, the accused persons produced 115 seconds long video footage of some of the victims of the attack being escorted by the mob in an area which is about two kilometres from where the accused persons were working. The video footage shows the deceased person lying motionless on the ground and surrounded by the mob. None of the accused persons feature in that video footage which was taken on 5 January 2021 and was given to the accused person by one William Sibanda of Mt Darwin Police Station. Furthermore the accused persons stated that they are able to positively identify by name, each of the individuals appearing in the video footage. Evidence of the State In support of its case, the State produced the post mortem report prepared by Doctor Walter Nyazondo who examined the body of the deceased and concluded that the cause of death was head injury. This report was admitted as exhibit “1”. The confirmed warned and cautioned statements of each of the accused persons were admitted as exhibits “2A” to “2F” respectively without any objection. All of the statements are in tandem with the defence outline. They all deny any involvement in the assault of the deceased and deny being at the scene of the assault. The first witness called by the State to give oral evidence was Admire Mutede. His evidence was to the following effect: He was employed as a security officer at Makaha Mining Syndicate Mt Darwin in January 2021 but no longer so employed. All the accused persons are known to him from before the incident, as employees of Roy Rama Mining Syndicate. On the fateful day he was at Makaha Mining Syndicate and there was an unresolved issue with Roy Rama Mining Syndicate as both were claiming rights to the same mining claim. Makaha Mining Syndicate was under ownership of one Matangira. The dispute had come to a head at some point and the police had to intervene. The accused persons and Roy Rama were asked to move away from the claim for two weeks by the police, but they insisted on taking the mining claim by force. The accused persons had come back to the mining claim in three cars. Upon their return they found the witness Admire together with other 13 employees (security guards) parked by the guard room of Makaha Mine. The accused persons drove past to N.D tuckshops and spent about 20 minutes there. They then drove back and pointed at the witness and his colleagues as they proceeded to Mukaradzi River which is within the mine. The accused persons then parked their motor vehicles there and came back on foot. They were then armed with stones and iron bars. At this point the witness Admire Mutede, and his colleagues were seated in a white pick-up truck. The second accused person is alleged to have thrown a stone which hit the side of the car on the passenger side at the window. The third accused person is said to have pelted another stone which hit the rear part of the motor vehicle body. At that point, Admire Mutede and his colleagues alighted from the motor vehicle and moved closer to the mountain. It is alleged that the accused persons went to the guard room and destroyed it. One dog escaped whilst the accused persons killed the other. Upon seeing this, Mutede’s crew fled up the mountain in different directions with different assailants. In his group, Mutede ran together with one Anthony Matanga and the deceased. They ran for about two kilometres with him leading the pack, followed by Anthony and lastly the deceased. After about two kilometres, the deceased said he was tired. Admire Mutede urged him to continue running as there was a war behind them. Admire Mutede ran for about 25 metres from the deceased who had stopped when he said he was tired. Admire Mutede watched and saw that the first accused was armed with stones, and he threw one at the deceased and it hit him on the head, and he fell on his face. The second and third accused persons are said to have thrown other stones and hit the deceased’s head too. At that point, Anthony Matanga, who was some 15 metres from the deceased, raised up his arms and went back to where the deceased was. He too was pelted with stones and he fell down and stood up but several people were then hitting him with stones. When the witness Admire Mutede saw this he ran for his life for about 12 to 13 kilometres to Mt Darwin Police Station where he made a police report. At the time of lodging his report, he learnt of the deceased’s demise and that there were 4 others who were injured and had been ferried to hospital. Those who pursued Admire Mutede, Anthony Matanga and the deceased were the six accused persons. He learnt that a total of 6 people had been assaulted and there was 1 death. Under cross examination Admire Mutede clarified that under CR 36/01/21 he had made a report against the second accused, one Tyson, Tyson’s son and Obey of malicious damage to his motor vehicle through the throwing of stones. Such events are alleged to have happened on 5 January 2021 at around 0800 hours. He confirmed that, that event happened on the same day as the assault case. Admire Mutede refuted knowledge of a criminal case in which some of the accused persons were accused of stealing gold ore from Makaha. He also claimed to have no knowledge of an application for an interdict in which he was the first applicant and one Remigious T Matangira was the second applicant. The first to sixth respondents were the first to sixth accused persons as in this case. There were three other respondents. Upon being shown the founding affidavit, Admire Mutede remembered the application which was filed under case No. C01/2021 before the Bindura Magistrates Court but said he did not sign the affidavit though his name appeared. The dispute between Roy Rama and Makaha had been subsisting from before 2020 when he joined Makaha as a security officer. He said he had worked with the deceased for about a month. He clarified that the group which attacked them had around 20 people but the ones who then attacked the deceased and Anthony Matanga are the six accused persons. When they were attacked initially there were 13 of them. Ten were in the car and others were outside. Asked to clarify his police statement about a gun allegedly pointed at him by the first accused, he said he does not know where this was put when the fight started as the accused persons had parked some 500 metres away and had come back on foot. Admire was asked to explain how the dogs were killed. He said the dogs were struck with stones and iron bars and that is when they started running as they had initially walked away when the cabin and motor vehicle were destroyed. The stone which hit the deceased was said to be one that would fit in his palm. He was some 25m away from the deceased whilst the first accused was about 15 metres away. Video footage was shown to the witness Admire and he recognized Anthony Matanga and the deceased who was lying down. He confirmed that in the third video Anthony and the deceased were surrounded by a mob of people. He said by that time he had gone up the mountain but had seen Anthony being assaulted by the mob. He could not identify any of the mob members and the six accused persons did not feature in the videos. He had run for about 13km till he got to the police station as soon as he saw both the deceased and Anthony falling down after being hit. Admire confirmed that the accused had ferried the injured to the police and then to hospital. He believed they so acted in order to reduce the mortality rate. He had seen 6 injured people at the police station and Anthony was part of them. Under re-examination Admire confirmed that he had reported two cases to the police on 5 January 2021. One was for murder and the other for malicious damage to property. The matter was rolled over for continuation on 20 November 2024. It was intended to call the second witness Anthony Matanga and the investigating officer. The investigating officer was alleged to be ignoring the State counsel’s calls and messages yet he had personally signed the subpoena. The second witness had not been subpoenaed, was in Harare and said he was afraid to testify. It was the State counsel’s opinion that the investigating officer was compromised. A warrant of arrest was issued against him. The second witness to give evidence was Anthony Matanga and his testimony was as follows: He was employed as a security officer on either the 2nd or 3rd of January 2021 together with the deceased. There was a total of 14 security guards all together. On 5 January he was on duty at Makaha Mine together with the deceased and the other 12. He did not know any of the accused persons. On that day they had parked by Makaha Mine and 3 motor vehicles passed through. After the 3 vehicles passed, suddenly people appeared from lower ground making noise and approaching them. They started hurling stones at them. Noticing the commotion they jumped off the vehicle and ran in different directions. He ran towards same direction with the deceased who was behind him by about 11 metres. After 2km, the deceased said he was tired. Anthony Matanga stopped and turned and saw the deceased being pelted with a stone on the occiput area of the head. He fell on the ground with arms open on his face and never rose up. The same people apprehended him and ordered him to sit down as shown in the video. He was also hit with a stone on the forehead and between his legs. He was beaten whilst standing and when he stood up. This mob took him back to where they had left their motor vehicle and there he saw 3 other colleagues who had been injured too. From there they were taken to the police who said their motor vehicle had no fuel. The person who had ferried them took them to the hospital where they were treated and brought back to the police. At the time of fleeing Anthony Matanga said he had noticed 2 others ahead of him because at some point he was behind the deceased but overtook him. Though he was confused at that time, he saw two people ahead and one was Romeo whose surname he could not remember. He had not seen Admire Mutede running ahead of him. He had last seen him in the car and nowhere in the mountain where they fled to. The stone that hit the deceased was thrown from about 6 to 7 metres away and this was a few seconds after the deceased had said he was tired. Anthony Matanga said he could identify their assailants in the video and could have done so if an identification parade had been held. None was held. He had been shown the videos by certain people in the neighbourhood some 2 days after the incident. The videos did not show deceased being assaulted and he does not know who recorded them. The same mob which assaulted the deceased had assaulted him and one person had restrained the assailants from further assaulting him thus saving him. When the assailants took him back to the parked motor vehicle, the deceased person was left because someone indicated he had already passed on. Anthony confirmed that he had not been made aware of the court hearing on 18 November 2024 and only later afterwards did he get a WhatsApp message with the subpoena attached. Under cross examination Anthony stated that he had known the deceased for more than 10 years as they both stayed in Mufakose. They had worked together for Makaha Mining Syndicate for only 3 to 4 days. On the fateful day they had just arrived at work and their motor vehicle was parked. All 13 were in the car except for Admire who disembarked and went on higher ground to make a call. When asked about the 3 motor vehicles which allegedly passed and returned Anthony said that no motor vehicle returned but as soon as the motor vehicles passed, the commotion started. According to him, the assailants were different from those in the cars. The person who threw the fatal stone on the deceased was said to be some guy on the video who was wearing something orange who was not before the court as an accused person. Anthony also said the beatings on him continued from the point of initial assault all the way to the car and stopped just before getting to the car. Had it not been for the person who restrained the assaults he could have lost his life too. None of the accused persons were in the group of the mob which assaulted him. There were more than 20 people in that mob. Only stones had been used as weapons. They had been ferried to Mt Darwin by a team of people who had parked their car next to the Makaha Mining Syndicate car. Under re-examination Anthony explained that the deceased and him stayed in the same neighbourhood from childhood and their houses were adjacent to each other. They used the same recreational facilities. They were close friends and would spend time together. Both of them were recruited by Admire and went to Mt Darwin together to start work. Both of them were assaulted by the same person in the same place. When questioned about whether as a complainant to the assault he had lodged a report on the assault and who his suspect was, he said at that moment he could not speak and names of suspects were suggested to him by Admire Mutede. This was also because he did not know the people by name. It was when he saw the video that he saw the real assailants not the ones whose names had been dropped by Admire. Anthony was asked about why he had raised his hands and gone towards the deceased, instead of fleeing, and he said he had hoped to save his friend. On Admire reciting how Anthony had surrendered, Anthony said that Admire had asked him on how he had survived the storm and he narrated to him. The third witness, the investigating officer, was Kenias Mujera who had since retired but at the material time was employed by ZRP CID Mt Darwin. He had 21 years experience. He retired on 4 February 2024 and is now staying in Chipinge. He did not know any of the accused persons prior to the investigations. In the course of his investigations, he claimed that both Admire and Anthony had implicated the six accused persons. Each witness had given their statement separately and freely. However Anthony, who was close to the deceased was in pain. This witness observed that Admire Mutede was more superior to the other witnesses from the way he would give them directions. This witness had just arrived in Mt Darwin. The investigating officer surmised that there was a misunderstanding between two mining syndicates who possibly wanted to mine at the same claim. On 5 January 2021, it was the accused’s group which had been on the ground when deceased’s group also came and the altercation started. He could not confirm which of the syndicates was lawfully on site but both were claiming the same pit. According to the investigating officer, he had established that the accused persons are the ones who had chased the rival group and assaulted the deceased. He had been told how each of the accused persons committed the offence. He had visited the scene of crime and estimated distance from the base to that place as 1½ km. The two witnesses Admire and Anthony had made indications to him. He observed the blood stains and recovered the murder weapon, the stone which was weighed at Mt Darwin Post Office. Each one of the witnesses made indications separately and both pointed to the same position. A sketch plan allegedly prepared after indications by both witnesses was admitted into evidence. The investigating officer observed that the deceased was bleeding from the nose and mouth and had a fracture at the back of his head. His body had bruises, lacerations and scratches indicating close range attacks. Other than the deceased, there were other injured people. There had been no other people involved in the deceased’s assault except the six accused persons. Surprisingly, the investigating officer had not secured the video during his investigations though he had heard about it. He did not know who took the video and had never watched it. The investigating officer was not at the station when the initial report was made but believes it was Admire Mutede who had lodged the report. He worked with a team of 5 other investigators. Under cross examination the investigating officer conceded that he had not noted the existence of the video despite its relevance to the investigation. As far as he was concerned, Anthony Matanga and Admire Mutede were eyewitnesses to the murder and had made indications to him which he reduced to a sketch plan. It has clarified that Anthony Matanga and Admire Mutede had been interviewed separately. The investigating officer, however, explained that as Admire Mutede was the one who stayed in Mt Darwin and Anthony Matanga was new in the area Admire Mutede may have suggested the names of suspects. The investigating officer confirmed that an identification parade had not been held as the names of the suspects were mentioned by people well known to them, that is Admire Mutede. The investigating officer could not spell out the alleged role of each of the six accused persons in the deceased’s death. It was only first accused who was then named as having thrown the fatal stone. When it was put to the investigating officer that his sketch plan tendered in evidence was not signed by the witnesses and himself, he could not give a satisfactory explanation except to say he had signed. Upon being shown the video, the investigating officer was able to identify Anthony Matanga but was unable to identify the person in orange. He also confirmed seeing the deceased lying on the ground and Anthony Matanga being assaulted. It was put to the investigating officer that the striking of the deceased, the retreating of Anthony Matanga with raised arms and his assault had all happened within a few minutes and the person in orange threw the fatal stone. To this, the investigating officer affirmed the importance of the videos in his investigations. He confirmed too that the six accused persons do not feature in the video clips. The investigating officer also confirmed that the scene of crime in only 5 – 7km from the police station. The evidence of Isah Parichi was formally admitted by consent in terms of s314 of the Criminal Procedure and Evidence Act. He is a duly attested member in the Zimbabwe Republic Police stationed at CID Mt Darwin. On 5 January 2021 and at around 1000hours, he was on duty when he received a report of a murder at Mukaradzi Gold Panning Site, Mt Darwin. He was accompanied by other police officers to the scene of crime. He observed that the deceased’s body was lying on its stomach with multiple injuries all over the body. There was blood all over the place. The body was identified to him by Anthony Matanga who was also badly injured. There were no signs of life on the deceased’s body, and he ferried it to Mt Darwin hospital. Doctor Walter Nyazondo is a duly registered medical practitioner employed as a General Medical Officer. On 5 January 2021 and at around 16:15 hours the body of the deceased was brought to Mt Darwin Hospital and he certified it dead. On 6 January 2021 and at the request of ZRP Mt Darwin, he examined the remains of the deceased and observed multiple tissue injuries, pneumothorax, rib fractures and head injuries. He concluded that death was due to “head injury”. His findings are contained in Annexure 1. This evidence was also formally admitted without objections, in terms of s314 of the Criminal Procedure and Evidence Act. With this, the State closed its case. Dismissal at the Close of The State Case At the close of the State case, the court directed the State to address it on whether the State considers that the evidence adduced connects the accused persons to the commission of the offence or other competent verdict, in terms of s198(3) of the Criminal Procedure and Evidence Act. The State opted to submit written submissions. Both sides filed written submissions which we considered and concluded that the accused persons would be put to their defence. We placed reliance on the case of AG v Tarwirei 1997 ZLR 575 (5) where it was held that while it is true that a court may acquit at the end of the State case where the evidence of the prosecution witnesses had been so discredited as a result of cross – examination or is so manifestly unreliable that no reasonable tribunal could safely convict, such cases would be rare. It would be quite exceptional for the credibility of a witness to be utterly destroyed that no part of his material evidence could possibly be believed. In the case of S v Elisha Manhanga & Ors HC CRB 48/22 it was held that the credibility or otherwise of witnesses at this stage is a minefield which the court would comment on in its main judgment and the temptation to do so at this stage is to be avoided. There is need to hear all the evidence and not do so prematurely. In casu, it is the evidence of Admire Mutede as cast against that of Anthony Matanga. The court cannot decide at the moment without the accused’s version as to the veracity of either witness’ version. There is nothing inherently incredible about the State version as per Admire. Equally, there is nothing inherently incredible about Anthony’s version. The video has to be interrogated. It does not show the relevant point where the deceased is assaulted. Who is the source of the video? Why is it in 3 parts? Why is no one among the accused persons appearing yet they allegedly stopped the assault. It is for the above reasons that we found that the State had established a prima facie case and the accused had to be put to their defence. Evidence of The Defence The accused persons elected to lead evidence from two witnesses only, being the first and third accused persons. Both abided by their defence outline. Luckson Jonga, the first accused person is aged 44 years old and resides in New Pfura, Mt Darwin. He is employed by Roy Rama Mining Syndicate in the capacity of project manager, and they carry out mining in the Mukaradzi area. The deceased was not known to him and he denies that he and the five other accused person assaulted the deceased all over the body. These, he says, are lies. Whilst admitting having been in the Mukaradzi area on 5 January 2021, he says he had driven to work in his Toyota D4D white single cab vehicle and arrived at work around 8:00am. He was in company of Partson Jonga, the second accused. Upon arrival he saw many people coming from the river going uphill. He walked to their offices. When he turned, he saw many people in the hill fighting. He proceeded to the Kaseke shaft where they were realizing a lot of money as he was afraid of what the mob could do to disrupt their work. There was a security guard named Douglas Bob by that shaft. After about 20 to 30 minutes, one Chopeni Shango came running. He reported that there was a lot of fighting at the hill and since the first accused was a senior person in the locality, they should go and try to stop the fight. They travelled for about 400 – 500 metres from Kaseke shaft to the scene. There, the first accused saw a lot of people surrounding 4 people whom they were assaulting with stones and switches. He forced his way through the crowd, raised his hand and told the crowd to stop the assault. Some stopped whilst others continued. One Tyson Chitute and others joined in to stop the assault and eventually the assaults stopped. Those being assaulted moved and sat by the first accused’s feet. He then sent one Obey Chakanyuka to fetch his motor vehicle. Once parked, Tyson Chitute, second accused, sixth accused, fourth accused, fifth accused and Job Chingombe assisted to get the injured into the car so they could be taken to the police station. All four injured people were unknown to him. At the police station, they were attended to by Officer Chari. The injured stated that they had been assaulted by a lot of people and the first accused person had been their savior. The injured supplied their names to the police who requested transport assistance to ferry the injured to Mt Darwin Hospital for treatment. The injured had no money on them and the first accused paid US$12.00 on their behalf for hospital fees. He left the injured at the hospital and dropped off the police officers and went back to work. Admire Mutede is known to the first accused as someone who was working at Mashona Queen 3 Claim under one Matangira. Before that, he knew him when he was working at the hammer mills. Before he moved to work for Matangira, they had, had a good working relationship. However after switching employers he became a “bad” person who would fabricate issues against him to get him arrested. The relationship was bad as at 5 January 2021. The first acused testified that he was aware of the video in this matter which had been handed over to him by a police officer named William Sibanda of CID Mt Darwin who had invited him to his office. This was some 8 days after his arrest on 5 January. William Sibanda advised him to hand over the video to the Investigating Officer as he did not want to be seen as interfering in another officer’s matter. He does not know who recorded the video. He was able to recognize 4 people from the video. These are Talent Zhalendu, Austin Chimutarara, Admire (with rasta and wearing dotted T – shirt and not Admire Mutede) and Amon. The witness claims to have told the Investigating Officer about the video and he produced it but the Investigating Officer was not concerned and brushed him off saying that he wanted to teach him his work. With this rebuff he looked for the Investigating Officer’s senior Mr Kutyauripo who was based in Bindura. Mr Kutyauripo viewed the videos and contacted the officer in charge, Mt Darwin, Mr Gadzira and instructed him to arrest the people in the video whom the first accused had identified. Officer Gadzira upon meeting the first accused, explained he was new and called one officer Chigara and questioned why they had not arrested the people appearing in the video. Officer Chigara said that he had been given an instruction to arrest but did not elaborate on the source of such instruction. Officer Gadzira concluded that the matter had not been properly investigated and said he would help. He called after two days and offered to assign police officers to go and arrest the identified people in the video. The first accused person offered his motor vehicle and was asked to wait. After 30 minutes he was called in and was advised that after consulting with officer Kutyauripo they had decided to continue with the investigations after the elections as it was towards elections in 2022. After the elections, the witness went back to Mr Gadzira but he never called back. It was the accused persons who had pushed to have the matter finally set down. In explaining how all the accused persons were arrested, the first accused said that he got a call from the police between 3 and 4pm. He went in the company of the fourth accused who was complaining of not feeling well whom he was hoping to drop off. He was referred to the officer in charge who inquired who he had come with. The officer in charge explained that his hands were tied as he had been instructed to arrest him on allegations of murder. The officer in charge had a list and indicated that the fourth accused was on the list too. He advised that there were 7 people on the list, one of whom was Adonis Marere who was in Harare on that day. The first accused requested the list and called all the six accused persons. All of them were arrested on 5 January 2021 except the sixth accused whose phone was not reachable and who came after 2 days. There was no objection to the admission of the video clips which were entered as exhibits A1 – A3. The mob which first accused stopped from assaulting the victims was said to be more than 200 in number. He had established the source of the dispute to be allegations that the victims had been forcibly taking money and gravel from the mine. The place where the deceased was struck and left was said to be some 2km away from the place of the first accused’s intervention which was alongside a road and not in the bush. It was confirmed that there was a dispute between Roy Rama Syndicate which was owned by Roy Makumbe and Mashona Queen 3 owned by Remigious Matangira. The parties had been to court several times on this. In a High Court matter under HH 224/20 Roy Rama Syndicate had been the successful party. This was admitted as exhibit B. Admire Mutede had also sued the first accused and others before the Bindura Magistrates Court and his interdict was thrown out. In exhibit C of the defence was tendered a court extract showing the acquittal of the first, third and fourth accused in a charge of theft of gold ore. Under cross examination the first accused explained Admire’s change of attitude upon change of employer as emanating from the attitude of his new employer who has a reputation for forcibly taking over claims to productive mines. He was the one on the ground and his employer was not. This objective was said to have been realised when the accused persons were arrested. The first accused’s attention was drawn to exhibit C from page 14 where case SC 162/20 appears to be in support of Admire Mutede’s employer, and he said he could not comment on what was from the courts. When it was put to the first accused person that the video clips come in 3 parts, he explained that they all show the same people and the person wearing the orange t – shirt is sitting where the deceased is lying. The words uttered to the effect that “In a war if a person falls we leave them and take those who can walk.” is explained to reflect what happened on that mountain. The witness Anthony Matanga was unknown to the first accused person and was said not to have been part of those whom he ferried to the hospital. The second and last witness to testify for the defence was the third accused person. He too works for Roy Rama Mining Syndicate. He did not know the deceased during his lifetime and was not at the scene of the murder. He had been off duty and had just started work on the 5th of January 2021. He arrived at the office and saw many people and the first accused raising his hand. He forced his way into the crowd and pushed them back as he reminded them that they had elected him as a crime committee member and he could cause their arrest if they did not stop their unlawful conduct. At that point some people started dispersing and the injured sat at first accused’s feet. He confirmed that the first accused then sent Obey to fetch his car and they helped the injured to get into the car. They also walked beside the car to protect it from the riotous crowd and after a short distance they jumped in and went to the police station first. He was arrested on 5 January 2021 after receiving a call from the first accused around 4:00pm and he got to the police between 6:00pm and 7:00pm. It was the already arrested first and fourth accused persons who then explained the charge against them. The third accused denied having thrown a stone which felled the deceased and said the allegations by Admire were lies. The third accused person got to know of the circulating video from the first accused person and had not interacted with the Investigating Officer in the matter. Anthony Matanga was not known to this witness. He did not know the names of those they assisted but insisted that Anthony Matanga was not there. According to this witness, the security guards brought in by Admire Mutede from Harare who had been there for 3 days only, were regarded as hired thugs. With this the defence closed its case. Agreed Facts The evidence from both sides shows that there was a long standing dispute between Roy Rama Mining Syndicate and Makaha Mining Syndicate. The accused persons were employed by Roy Rama Mining Syndicate whilst the deceased was employed by Makaha Mining Syndicate. The disputation was on a mining claim. The parties were no strangers to the courts, having been to Bindura Magistrates Court severally in both civil and criminal matters, the High Court and Supreme Court Annexures A, B and C prove this. It is common cause too that the deceased was killed in the mountain, some 2km from the place where the Makaha car had been parked. This is evident from the evidence of both Admire Mutede and Anthony Matanga and the investigation officer. The first and third accused’s evidence confirmed too that the deceased was not killed by the roadside where the injured were gathered. It is common cause that the six accused persons and the witnesses, Anthony Matanga and Admire Mutede, were in the Mukaradzi area on the day in question. The Disputed Facts and Analysis of Evidence This matter is peculiar in that there are two key witnesses who gave contradictory versions of what happened on the mountain when they fled. Anthony Matanga, who appears in the video and was also assaulted and injured disputes that Admire Mutede was at the scene on the mountain and was running ahead of him. Admire Mutede insists he was there. There are several flaws with Admire Mutede’s credibility. The first thing to note is that he made two statements to the police on the events of 5 January 2021. One relates to an allegation of malicious injury to property under CR 36/01/21 and the other to murder under CR 20/01/21. It is curious that he relates two different versions about what happened. In the first instance at 0800 hours, they were asleep in a wooden cabin with his fellow workmates when the first accused led a mobilized group of gold panners against them and started pelting stones at the car. In the other instance, it was also at 0800hrs on 5 January 2021 when he was relaxed with his workmates in their motor vehicle which was parked along the road outside their guardroom. In this case a pistol was produced by the first accused and pointed at him and he was warned that first accused wanted his head. In this instance a dog was killed and a guard room destroyed. How is it possible that the same person can relate two different versions of the same events which supposedly occurred at the same time. This can only point to untruthfulness by the teller of the tales. In order to bolster his assertion that the accused persons had mobilized the assailants, Admire says that the accused persons drove past in three motor vehicles loaded with persons towards the N.D tuckshops direction and then back towards the river where they parked then the accused persons and the mob came back on foot. Anthony Matanga refuted this and said the motor vehicles did not return. It was a separate crowd which appeared from lower ground. He said they were all in the car except for Admire Mutede, the driver who after parking the car went out to higher ground and was making a call. There can be no dispute about Anthony Matanga’s presence at the crime scene. The video footage confirms so. If indeed Admire Mutede was 10 metres ahead of Anthony Matanga, why would Anthony say he was not there? The sketch plan allegedly drawn by the investigating officer is not helpful. It was not signed by either Anthony Matanga and Admire Mutede and the investigating officer himself. Admire Mutede claimed to have run away from the crime scene to Mt Darwin Police Station for about 12 to 13km. On the contrary, the Investigating Officer averred that the distance is only 5 -7km. Another glaring inconsistency is the claim by Admire Mutede that the deceased and Anthony Matanga had been working at the mining location for more than a month, yet Anthony Matanga said they had only worked for 3 days after being hired by Admire Mutede from Mufakose in Harare. Whilst Admire Mutede said that the deceased had been attacked by the six accused persons only, Anthony Matanga estimated that the assailants were in excess of 20 individuals and none of the accused persons were there. This is confirmed by the video footage admitted as Exhibit A1 – A3. We accept that though the footage does not show the actual striking of the deceased and his falling, this happened contemporaneously with the assault on Anthony Matanga who is seen being assaulted in the video by the same crowd. This is so if regard is had to the utterances of the crowd. Can this court believe the evidence of Admire Mutede that it was the first accused who threw the fatal stone as against the emphatic evidence of Anthony Matanga which is backed up by video evidence that the stone was thrown by the person wearing the orange shirt. In the light of the questionable credibility of Admire Mutede, we elect to believe Anthony Matanga’s version. Anthony Matanga explained that the only reason why Admire Mutede related to how he had retreated towards the deceased with his arms in the air was that Admire Mutede asked him to recount everything, and he did. It did not escape our attention that both Anthony Matanga and the investigating officer said that it was Admire Mutede who had suggested the names of the six accused persons as suspects as Anthony Matanga was new in Mt Darwin, under Admire Mutede’s direction and in a lot of pain after witnessing the death of his friend. There was no identification parade held for Anthony Matanga’s benefit as confirmed by the investigating officer. Despite the relevance of the video footage which allegedly started circulating two days after the 5th of January 2021, and the offer to view it, from the first accused, the investigating officer ignored this vital evidence. He did not get the sketch plan signed; the subpoena was not served on Anthony Matanga whose evidence was running against the State case. The investigating officer himself who had retired only availed himself after a warrant of arrest had been issued. Could all this be said to affirm the first accused’s evidence that some police officers had confirmed that their hands were tied and they had been instructed to arrest the accused persons. Interestingly the list of suspects that the officer in charge had, contained seven names as it had escaped the supplier of such names that one Adonis Marere was not in Mt Darwin on the 5th of January 2021. This is the only reason why he was not arrested. The evidence of Anthony Matanga is more plausible. He was closest to the deceased, just 11 metres away. He was also a friend of the deceased. They had known each other for more than 10 years; they lived in the same neighbourhood in Mufakose and had been employed at the same time and travelled together to Mt Darwin where they spent a lot of time together. When danger loomed and they had to run for dear life, they ran in the same direction. When the deceased called out to him by his nickname “Soldier” that he was tired, Anthony Matanga stopped and turned back and witnessed the deceased’s striking on the occiput with a stone and how he fell face down. Anthony Matanga did not run for dear life but retreated with his hands raised in surrender, hoping to save his friend. The assailants however pounced on him too. The investigating officer says that Anthony Matanga was also badly hurt as evidenced by the video footage. Why, in such circumstances would Anthony Matanga concoct lies? We believe his version of events as the true account. Anthony Matanga’s version of events bolsters the defence case. The six accused persons were not at the crime scene. The Investigating Officer’s evidence was not helpful. He was not at the crime scene and relied heavily on what Anthony Matanga and Admire Mutede told him. He did not investigate the videos despite knowing of their existence and their relevance. His sketch plan is not signed and therefore unhelpful to the court. He did not organize an identification parade to enable Anthony Matanga to identify the murderers. In this case the police woefully failed in their constitutional duty set out in section 219(1)(a) of the Constitution of Zimbabwe. They are supposed to detect, investigate and prevent crime and to uphold the Constitution and enforce the law without fear or favour (section 219(1)(e). The facts in this matter support the accused’s assertion that their arrest was said to be an instruction. Such conduct should not be allowed to happen. It results in a waste of State resources and harassment of citizens. That should not be. The State urged the court to consider the possibility that the “hired thugs” are associated with the accused persons because of the ease with which they turned peacemakers in the face of a mob of 200 people and they were only 6. It was argued that they be held liable of the conduct of the mob in killing the deceased. Though this sounds enticing, it does not consider the first accused’s testimony that someone invited him to quell the disturbances because of his social standing in the community. He was a project manager. The third accused person was in the Crime Committee for the area and had been elected by the same community. There were also other people beyond the six accused persons who assisted in stopping the commotion. It would also not make sense that the six accused persons would end up arrested for the mob actions they were controlling and fail to get the mob members arrested. Given the totality of the evidence before us and the accused persons’ attempts to get these people arrested, there appears to be some other hand protecting these people identified in the video as they walked away scot free despite their identities being known. Factual Conclusions We make the following factual conclusions, The six accused persons were not present at the time and place where the deceased and Anthony Matanga were attacked. They did not know the two prior to the videos that ended up circulating.Anthony Matanga and the deceased were attacked by a mob of over 20 people and none of the accused persons were present.The first accused person was invited to help quell a mob of more than 200 artisanal gold miners who were assaulting 4 individuals whom they accused of being machete gangs.The first accused, with the help of the other accused persons and other people successfully stopped the assaults and ferried the injured to Mt Darwin Police Station then to the Hospital.Exhibits A1 – A3 being video footage in which the accused persons positively identified Talent Zhalendu (in orange t – shirt), Austin Chimutarara (in brown sunhat), Amon (in stripped t shirt) and Admire (sporting dreadlocks not Admire Mutede) as the assailants are relevant to the identification of the actual murderers of the deceased. Anthony Matanga confirmed that Talent Zhalendu threw the stone which fatally wounded the deceased. Conclusion At Law The totality of the evidence and proven facts before us show that the State has failed to prove beyond reasonable doubt that the first, second, third, fourth, fifth and sixth accused persons, one or more or all of them, unlawfully and with an intent to kill, assaulted Donaldson Chakwitisa all over the body with stones thereby causing injuries from which the said Donaldson Chakwitisa then and there died. We therefore find the first, second, third, fourth, fifth and sixth accused persons, not guilty of murder. They are consequently acquitted. Muchawa J: ………………………………………. National Prosecuting Authority, state’s legal practitioners Sinyoro and Partners, accused persons’ legal practitioners 8 HH 217 - 25 HCHR 3722/24 8 HH 217 - 25 HCHR 3722/24 THE STATE versus LUCKSON JONGA and PARTSON JONGA and SANUART CHITUTE and TENDAI MAFORO and INNOCENT CHIKAVA and DOUGLAS BOB HIGH COURT OF ZIMBABWE M UCHAWA J HARARE: 19 & 20 November, 2, 3 & 5 December 2024, 24 & 25 February 2025, 26 March 2025 Assessors: Mr Mhandu Mrs Chitsiga Criminal Trial D.H Chesa, for the State S Banda with C Makorokotera, for all the accused persons MUCHAWA J: Introduction The accused persons were arraigned before this Court to answer to a charge of murder. It is alleged that on 5 January 2021 at Mukaradzi Gold Panning Site, Mt Darwin, the accused one or more or all of them, unlawfully and with an intent to kill, assaulted Donaldson Chakwitisa all over the body with stones thereby causing injuries from which he then and there died. In detail, the State alleged that all the accused persons are employees of Roy Rama Mining Syndicate located in Mukaradzi, Mt Darwin. The deceased was employed at Makaha Mining Syndicate, Mt Darwin. On the 5th of January 2021 and at around 0500 hours, the deceased and his workmates were resting in a motor vehicle parked by the guard room to their mine. The accused c ame armed with stones, machetes and iron bars. They started throwing stones at the motor vehicle and its occupants. The deceased and his workmates jumped out of the vehicle and stood at a distance. They watched the accused hack and pelt with machetes and stones, a dog tied at the g uardroom, to death. After that, they charged towards the deceased and his mates. They tried to run away but the deceased was caught about two kilometers from the guardroom. The accused struck the deceased all over the body with stones until he died. A post mortem examination established the cause of death as head injury as per Doctor Walter Nyazondo. In their defence outline, the six accused persons denied ever jointly or severally assaulting the deceased unlawfully and with intent to kill as alleged or at all and put the State to the strictest proof thereof. Their narration of events is that on 5 January 2021, they were mining a shaft in the Mukaradzi area owned by Mr Kaseke when they heard noises of a mob shouting. They set out to investigate and found a mob of artisanal gold miners circled around and assaulting six individuals whom they were accusing of being machete gangs “Mashurugwi”. They claim to have successfully restrained the mob from further assaulting the six individuals whom they ferried to Mt Darwin Police Station where a report was made and thereafter to Mt Darwin Hospital for medical treatment. The accused persons further claim to have learnt later in the day that one of the victims of the mob attack had been found dead near the Mukaradzi area. The sixth accused person stated that he had in fact been confronted by a machete wielding gang of about fifteen people, earlier on but had managed to escape. He had averred that it was on later that day the gang were then attacked by a mob of artisanal miners in the Mukaradzi area who had teamed up against them and overpowered them. In short, the accused persons denied ever assaulting or acting in common purpose with the mob that assaulted the deceased and his colleagues as alleged or at all. Their only involvement was to restrain the attack, which they did successfully and then assisted the injured people as stated above. Additionally, the accused persons produced 115 seconds long video footage of some of the victims of the attack being escorted by the mob in an area which is about two kilometres from where the accused persons were working. The video footage shows the deceased person lying motionless on the ground and surrounded by the mob. None of the accused persons feature in that video footage which was taken on 5 January 2021 and was given to the accused person by one William Sibanda of Mt Darwin Police Station. Furthermore the accused persons stated that they are able to positively identify by name, each of the individuals appearing in the video footage. Evidence of the State In support of its case, the State produced the post mortem report prepared by Doctor Walter Nyazondo who examined the body of the deceased and concluded that the cause of death was head injury. This report was admitted as exhibit “1”. The confirmed warned and cautioned statements of each of the accused persons were admitted as exhibits “2A” to “2F” respectively without any objection. All of the statements are in tandem with the defence outline. They all deny any involvement in the assault of the deceased and deny being at the scene of the assault. The first witness called by the State to give oral evidence was Admire Mutede. His evidence was to the following effect: He was employed as a security officer at Makaha Mining Syndicate Mt Darwin in January 2021 but no longer so employed. All the accused persons are known to him from before the incident, as employees of Roy Rama Mining Syndicate. On the fateful day he was at Makaha Mining Syndicate and there was an unresolved issue with Roy Rama Mining Syndicate as both were claiming rights to the same mining claim. Makaha Mining Syndicate was under ownership of one Matangira. The dispute had come to a head at some point and the police had to intervene. The accused persons and Roy Rama were asked to move away from the claim for two weeks by the police, but they insisted on taking the mining claim by force. The accused persons had come back to the mining claim in three cars. Upon their return they found the witness Admire together with other 13 employees (security guards) parked by the guard room of Makaha Mine. The accused persons drove past to N.D tuckshops and spent about 20 minutes there. They then drove back and pointed at the witness and his colleagues as they proceeded to Mukaradzi River which is within the mine. The accused persons then parked their motor vehicles there and came back on foot. They were then armed with stones and iron bars. At this point the witness Admire Mutede, and his colleagues were seated in a white pick-up truck. The second accused person is alleged to have thrown a stone which hit the side of the car on the passenger side at the window. The third accused person is said to have pelted another stone which hit the rear part of the motor vehicle body. At that point, Admire Mutede and his colleagues alighted from the motor vehicle and moved closer to the mountain. It is alleged that the accused persons went to the guard room and destroyed it. One dog escaped whilst the accused persons killed the other. Upon seeing this, Mutede’s crew fled up the mountain in different directions with different assailants. In his group, Mutede ran together with one Anthony Matanga and the deceased. They ran for about two kilometres with him leading the pack, followed by Anthony and lastly the deceased. After about two kilometres, the deceased said he was tired. Admire Mutede urged him to continue running as there was a war behind them. Admire Mutede ran for about 25 metres from the deceased who had stopped when he said he was tired. Admire Mutede watched and saw that the first accused was armed with stones, and he threw one at the deceased and it hit him on the head, and he fell on his face. The second and third accused persons are said to have thrown other stones and hit the deceased’s head too. At that point, Anthony Matanga, who was some 15 metres from the deceased, raised up his arms and went back to where the deceased was. He too was pelted with stones and he fell down and stood up but several people were then hitting him with stones. When the witness Admire Mutede saw this he ran for his life for about 12 to 13 kilometres to Mt Darwin Police Station where he made a police report. At the time of lodging his report, he learnt of the deceased’s demise and that there were 4 others who were injured and had been ferried to hospital. Those who pursued Admire Mutede, Anthony Matanga and the deceased were the six accused persons. He learnt that a total of 6 people had been assaulted and there was 1 death. Under cross examination Admire Mutede clarified that under CR 36/01/21 he had made a report against the second accused, one Tyson, Tyson’s son and Obey of malicious damage to his motor vehicle through the throwing of stones. Such events are alleged to have happened on 5 January 2021 at around 0800 hours. He confirmed that, that event happened on the same day as the assault case. Admire Mutede refuted knowledge of a criminal case in which some of the accused persons were accused of stealing gold ore from Makaha. He also claimed to have no knowledge of an application for an interdict in which he was the first applicant and one Remigious T Matangira was the second applicant. The first to sixth respondents were the first to sixth accused persons as in this case. There were three other respondents. Upon being shown the founding affidavit, Admire Mutede remembered the application which was filed under case No. C01/2021 before the Bindura Magistrates Court but said he did not sign the affidavit though his name appeared. The dispute between Roy Rama and Makaha had been subsisting from before 2020 when he joined Makaha as a security officer. He said he had worked with the deceased for about a month. He clarified that the group which attacked them had around 20 people but the ones who then attacked the deceased and Anthony Matanga are the six accused persons. When they were attacked initially there were 13 of them. Ten were in the car and others were outside. Asked to clarify his police statement about a gun allegedly pointed at him by the first accused, he said he does not know where this was put when the fight started as the accused persons had parked some 500 metres away and had come back on foot. Admire was asked to explain how the dogs were killed. He said the dogs were struck with stones and iron bars and that is when they started running as they had initially walked away when the cabin and motor vehicle were destroyed. The stone which hit the deceased was said to be one that would fit in his palm. He was some 25m away from the deceased whilst the first accused was about 15 metres away. Video footage was shown to the witness Admire and he recognized Anthony Matanga and the deceased who was lying down. He confirmed that in the third video Anthony and the deceased were surrounded by a mob of people. He said by that time he had gone up the mountain but had seen Anthony being assaulted by the mob. He could not identify any of the mob members and the six accused persons did not feature in the videos. He had run for about 13km till he got to the police station as soon as he saw both the deceased and Anthony falling down after being hit. Admire confirmed that the accused had ferried the injured to the police and then to hospital. He believed they so acted in order to reduce the mortality rate. He had seen 6 injured people at the police station and Anthony was part of them. Under re-examination Admire confirmed that he had reported two cases to the police on 5 January 2021. One was for murder and the other for malicious damage to property. The matter was rolled over for continuation on 20 November 2024. It was intended to call the second witness Anthony Matanga and the investigating officer. The investigating officer was alleged to be ignoring the State counsel’s calls and messages yet he had personally signed the subpoena. The second witness had not been subpoenaed, was in Harare and said he was afraid to testify. It was the State counsel’s opinion that the investigating officer was compromised. A warrant of arrest was issued against him. The second witness to give evidence was Anthony Matanga and his testimony was as follows: He was employed as a security officer on either the 2nd or 3rd of January 2021 together with the deceased. There was a total of 14 security guards all together. On 5 January he was on duty at Makaha Mine together with the deceased and the other 12. He did not know any of the accused persons. On that day they had parked by Makaha Mine and 3 motor vehicles passed through. After the 3 vehicles passed, suddenly people appeared from lower ground making noise and approaching them. They started hurling stones at them. Noticing the commotion they jumped off the vehicle and ran in different directions. He ran towards same direction with the deceased who was behind him by about 11 metres. After 2km, the deceased said he was tired. Anthony Matanga stopped and turned and saw the deceased being pelted with a stone on the occiput area of the head. He fell on the ground with arms open on his face and never rose up. The same people apprehended him and ordered him to sit down as shown in the video. He was also hit with a stone on the forehead and between his legs. He was beaten whilst standing and when he stood up. This mob took him back to where they had left their motor vehicle and there he saw 3 other colleagues who had been injured too. From there they were taken to the police who said their motor vehicle had no fuel. The person who had ferried them took them to the hospital where they were treated and brought back to the police. At the time of fleeing Anthony Matanga said he had noticed 2 others ahead of him because at some point he was behind the deceased but overtook him. Though he was confused at that time, he saw two people ahead and one was Romeo whose surname he could not remember. He had not seen Admire Mutede running ahead of him. He had last seen him in the car and nowhere in the mountain where they fled to. The stone that hit the deceased was thrown from about 6 to 7 metres away and this was a few seconds after the deceased had said he was tired. Anthony Matanga said he could identify their assailants in the video and could have done so if an identification parade had been held. None was held. He had been shown the videos by certain people in the neighbourhood some 2 days after the incident. The videos did not show deceased being assaulted and he does not know who recorded them. The same mob which assaulted the deceased had assaulted him and one person had restrained the assailants from further assaulting him thus saving him. When the assailants took him back to the parked motor vehicle, the deceased person was left because someone indicated he had already passed on. Anthony confirmed that he had not been made aware of the court hearing on 18 November 2024 and only later afterwards did he get a WhatsApp message with the subpoena attached. Under cross examination Anthony stated that he had known the deceased for more than 10 years as they both stayed in Mufakose. They had worked together for Makaha Mining Syndicate for only 3 to 4 days. On the fateful day they had just arrived at work and their motor vehicle was parked. All 13 were in the car except for Admire who disembarked and went on higher ground to make a call. When asked about the 3 motor vehicles which allegedly passed and returned Anthony said that no motor vehicle returned but as soon as the motor vehicles passed, the commotion started. According to him, the assailants were different from those in the cars. The person who threw the fatal stone on the deceased was said to be some guy on the video who was wearing something orange who was not before the court as an accused person. Anthony also said the beatings on him continued from the point of initial assault all the way to the car and stopped just before getting to the car. Had it not been for the person who restrained the assaults he could have lost his life too. None of the accused persons were in the group of the mob which assaulted him. There were more than 20 people in that mob. Only stones had been used as weapons. They had been ferried to Mt Darwin by a team of people who had parked their car next to the Makaha Mining Syndicate car. Under re-examination Anthony explained that the deceased and him stayed in the same neighbourhood from childhood and their houses were adjacent to each other. They used the same recreational facilities. They were close friends and would spend time together. Both of them were recruited by Admire and went to Mt Darwin together to start work. Both of them were assaulted by the same person in the same place. When questioned about whether as a complainant to the assault he had lodged a report on the assault and who his suspect was, he said at that moment he could not speak and names of suspects were suggested to him by Admire Mutede. This was also because he did not know the people by name. It was when he saw the video that he saw the real assailants not the ones whose names had been dropped by Admire. Anthony was asked about why he had raised his hands and gone towards the deceased, instead of fleeing, and he said he had hoped to save his friend. On Admire reciting how Anthony had surrendered, Anthony said that Admire had asked him on how he had survived the storm and he narrated to him. The third witness, the investigating officer, was Kenias Mujera who had since retired but at the material time was employed by ZRP CID Mt Darwin. He had 21 years experience. He retired on 4 February 2024 and is now staying in Chipinge. He did not know any of the accused persons prior to the investigations. In the course of his investigations, he claimed that both Admire and Anthony had implicated the six accused persons. Each witness had given their statement separately and freely. However Anthony, who was close to the deceased was in pain. This witness observed that Admire Mutede was more superior to the other witnesses from the way he would give them directions. This witness had just arrived in Mt Darwin. The investigating officer surmised that there was a misunderstanding between two mining syndicates who possibly wanted to mine at the same claim. On 5 January 2021, it was the accused’s group which had been on the ground when deceased’s group also came and the altercation started. He could not confirm which of the syndicates was lawfully on site but both were claiming the same pit. According to the investigating officer, he had established that the accused persons are the ones who had chased the rival group and assaulted the deceased. He had been told how each of the accused persons committed the offence. He had visited the scene of crime and estimated distance from the base to that place as 1½ km. The two witnesses Admire and Anthony had made indications to him. He observed the blood stains and recovered the murder weapon, the stone which was weighed at Mt Darwin Post Office. Each one of the witnesses made indications separately and both pointed to the same position. A sketch plan allegedly prepared after indications by both witnesses was admitted into evidence. The investigating officer observed that the deceased was bleeding from the nose and mouth and had a fracture at the back of his head. His body had bruises, lacerations and scratches indicating close range attacks. Other than the deceased, there were other injured people. There had been no other people involved in the deceased’s assault except the six accused persons. Surprisingly, the investigating officer had not secured the video during his investigations though he had heard about it. He did not know who took the video and had never watched it. The investigating officer was not at the station when the initial report was made but believes it was Admire Mutede who had lodged the report. He worked with a team of 5 other investigators. Under cross examination the investigating officer conceded that he had not noted the existence of the video despite its relevance to the investigation. As far as he was concerned, Anthony Matanga and Admire Mutede were eyewitnesses to the murder and had made indications to him which he reduced to a sketch plan. It has clarified that Anthony Matanga and Admire Mutede had been interviewed separately. The investigating officer, however, explained that as Admire Mutede was the one who stayed in Mt Darwin and Anthony Matanga was new in the area Admire Mutede may have suggested the names of suspects. The investigating officer confirmed that an identification parade had not been held as the names of the suspects were mentioned by people well known to them, that is Admire Mutede. The investigating officer could not spell out the alleged role of each of the six accused persons in the deceased’s death. It was only first accused who was then named as having thrown the fatal stone. When it was put to the investigating officer that his sketch plan tendered in evidence was not signed by the witnesses and himself, he could not give a satisfactory explanation except to say he had signed. Upon being shown the video, the investigating officer was able to identify Anthony Matanga but was unable to identify the person in orange. He also confirmed seeing the deceased lying on the ground and Anthony Matanga being assaulted. It was put to the investigating officer that the striking of the deceased, the retreating of Anthony Matanga with raised arms and his assault had all happened within a few minutes and the person in orange threw the fatal stone. To this, the investigating officer affirmed the importance of the videos in his investigations. He confirmed too that the six accused persons do not feature in the video clips. The investigating officer also confirmed that the scene of crime in only 5 – 7km from the police station. The evidence of Isah Parichi was formally admitted by consent in terms of s314 of the Criminal Procedure and Evidence Act. He is a duly attested member in the Zimbabwe Republic Police stationed at CID Mt Darwin. On 5 January 2021 and at around 1000hours, he was on duty when he received a report of a murder at Mukaradzi Gold Panning Site, Mt Darwin. He was accompanied by other police officers to the scene of crime. He observed that the deceased’s body was lying on its stomach with multiple injuries all over the body. There was blood all over the place. The body was identified to him by Anthony Matanga who was also badly injured. There were no signs of life on the deceased’s body, and he ferried it to Mt Darwin hospital. Doctor Walter Nyazondo is a duly registered medical practitioner employed as a General Medical Officer. On 5 January 2021 and at around 16:15 hours the body of the deceased was brought to Mt Darwin Hospital and he certified it dead. On 6 January 2021 and at the request of ZRP Mt Darwin, he examined the remains of the deceased and observed multiple tissue injuries, pneumothorax, rib fractures and head injuries. He concluded that death was due to “head injury”. His findings are contained in Annexure 1. This evidence was also formally admitted without objections, in terms of s314 of the Criminal Procedure and Evidence Act. With this, the State closed its case. Dismissal at the Close of The State Case At the close of the State case, the court directed the State to address it on whether the State considers that the evidence adduced connects the accused persons to the commission of the offence or other competent verdict, in terms of s198(3) of the Criminal Procedure and Evidence Act. The State opted to submit written submissions. Both sides filed written submissions which we considered and concluded that the accused persons would be put to their defence. We placed reliance on the case of AG v Tarwirei 1997 ZLR 575 (5) where it was held that while it is true that a court may acquit at the end of the State case where the evidence of the prosecution witnesses had been so discredited as a result of cross – examination or is so manifestly unreliable that no reasonable tribunal could safely convict, such cases would be rare. It would be quite exceptional for the credibility of a witness to be utterly destroyed that no part of his material evidence could possibly be believed. In the case of S v Elisha Manhanga & Ors HC CRB 48/22 it was held that the credibility or otherwise of witnesses at this stage is a minefield which the court would comment on in its main judgment and the temptation to do so at this stage is to be avoided. There is need to hear all the evidence and not do so prematurely. In casu, it is the evidence of Admire Mutede as cast against that of Anthony Matanga. The court cannot decide at the moment without the accused’s version as to the veracity of either witness’ version. There is nothing inherently incredible about the State version as per Admire. Equally, there is nothing inherently incredible about Anthony’s version. The video has to be interrogated. It does not show the relevant point where the deceased is assaulted. Who is the source of the video? Why is it in 3 parts? Why is no one among the accused persons appearing yet they allegedly stopped the assault. It is for the above reasons that we found that the State had established a prima facie case and the accused had to be put to their defence. Evidence of The Defence The accused persons elected to lead evidence from two witnesses only, being the first and third accused persons. Both abided by their defence outline. Luckson Jonga, the first accused person is aged 44 years old and resides in New Pfura, Mt Darwin. He is employed by Roy Rama Mining Syndicate in the capacity of project manager, and they carry out mining in the Mukaradzi area. The deceased was not known to him and he denies that he and the five other accused person assaulted the deceased all over the body. These, he says, are lies. Whilst admitting having been in the Mukaradzi area on 5 January 2021, he says he had driven to work in his Toyota D4D white single cab vehicle and arrived at work around 8:00am. He was in company of Partson Jonga, the second accused. Upon arrival he saw many people coming from the river going uphill. He walked to their offices. When he turned, he saw many people in the hill fighting. He proceeded to the Kaseke shaft where they were realizing a lot of money as he was afraid of what the mob could do to disrupt their work. There was a security guard named Douglas Bob by that shaft. After about 20 to 30 minutes, one Chopeni Shango came running. He reported that there was a lot of fighting at the hill and since the first accused was a senior person in the locality, they should go and try to stop the fight. They travelled for about 400 – 500 metres from Kaseke shaft to the scene. There, the first accused saw a lot of people surrounding 4 people whom they were assaulting with stones and switches. He forced his way through the crowd, raised his hand and told the crowd to stop the assault. Some stopped whilst others continued. One Tyson Chitute and others joined in to stop the assault and eventually the assaults stopped. Those being assaulted moved and sat by the first accused’s feet. He then sent one Obey Chakanyuka to fetch his motor vehicle. Once parked, Tyson Chitute, second accused, sixth accused, fourth accused, fifth accused and Job Chingombe assisted to get the injured into the car so they could be taken to the police station. All four injured people were unknown to him. At the police station, they were attended to by Officer Chari. The injured stated that they had been assaulted by a lot of people and the first accused person had been their savior. The injured supplied their names to the police who requested transport assistance to ferry the injured to Mt Darwin Hospital for treatment. The injured had no money on them and the first accused paid US$12.00 on their behalf for hospital fees. He left the injured at the hospital and dropped off the police officers and went back to work. Admire Mutede is known to the first accused as someone who was working at Mashona Queen 3 Claim under one Matangira. Before that, he knew him when he was working at the hammer mills. Before he moved to work for Matangira, they had, had a good working relationship. However after switching employers he became a “bad” person who would fabricate issues against him to get him arrested. The relationship was bad as at 5 January 2021. The first acused testified that he was aware of the video in this matter which had been handed over to him by a police officer named William Sibanda of CID Mt Darwin who had invited him to his office. This was some 8 days after his arrest on 5 January. William Sibanda advised him to hand over the video to the Investigating Officer as he did not want to be seen as interfering in another officer’s matter. He does not know who recorded the video. He was able to recognize 4 people from the video. These are Talent Zhalendu, Austin Chimutarara, Admire (with rasta and wearing dotted T – shirt and not Admire Mutede) and Amon. The witness claims to have told the Investigating Officer about the video and he produced it but the Investigating Officer was not concerned and brushed him off saying that he wanted to teach him his work. With this rebuff he looked for the Investigating Officer’s senior Mr Kutyauripo who was based in Bindura. Mr Kutyauripo viewed the videos and contacted the officer in charge, Mt Darwin, Mr Gadzira and instructed him to arrest the people in the video whom the first accused had identified. Officer Gadzira upon meeting the first accused, explained he was new and called one officer Chigara and questioned why they had not arrested the people appearing in the video. Officer Chigara said that he had been given an instruction to arrest but did not elaborate on the source of such instruction. Officer Gadzira concluded that the matter had not been properly investigated and said he would help. He called after two days and offered to assign police officers to go and arrest the identified people in the video. The first accused person offered his motor vehicle and was asked to wait. After 30 minutes he was called in and was advised that after consulting with officer Kutyauripo they had decided to continue with the investigations after the elections as it was towards elections in 2022. After the elections, the witness went back to Mr Gadzira but he never called back. It was the accused persons who had pushed to have the matter finally set down. In explaining how all the accused persons were arrested, the first accused said that he got a call from the police between 3 and 4pm. He went in the company of the fourth accused who was complaining of not feeling well whom he was hoping to drop off. He was referred to the officer in charge who inquired who he had come with. The officer in charge explained that his hands were tied as he had been instructed to arrest him on allegations of murder. The officer in charge had a list and indicated that the fourth accused was on the list too. He advised that there were 7 people on the list, one of whom was Adonis Marere who was in Harare on that day. The first accused requested the list and called all the six accused persons. All of them were arrested on 5 January 2021 except the sixth accused whose phone was not reachable and who came after 2 days. There was no objection to the admission of the video clips which were entered as exhibits A1 – A3. The mob which first accused stopped from assaulting the victims was said to be more than 200 in number. He had established the source of the dispute to be allegations that the victims had been forcibly taking money and gravel from the mine. The place where the deceased was struck and left was said to be some 2km away from the place of the first accused’s intervention which was alongside a road and not in the bush. It was confirmed that there was a dispute between Roy Rama Syndicate which was owned by Roy Makumbe and Mashona Queen 3 owned by Remigious Matangira. The parties had been to court several times on this. In a High Court matter under HH 224/20 Roy Rama Syndicate had been the successful party. This was admitted as exhibit B. Admire Mutede had also sued the first accused and others before the Bindura Magistrates Court and his interdict was thrown out. In exhibit C of the defence was tendered a court extract showing the acquittal of the first, third and fourth accused in a charge of theft of gold ore. Under cross examination the first accused explained Admire’s change of attitude upon change of employer as emanating from the attitude of his new employer who has a reputation for forcibly taking over claims to productive mines. He was the one on the ground and his employer was not. This objective was said to have been realised when the accused persons were arrested. The first accused’s attention was drawn to exhibit C from page 14 where case SC 162/20 appears to be in support of Admire Mutede’s employer, and he said he could not comment on what was from the courts. When it was put to the first accused person that the video clips come in 3 parts, he explained that they all show the same people and the person wearing the orange t – shirt is sitting where the deceased is lying. The words uttered to the effect that “In a war if a person falls we leave them and take those who can walk.” is explained to reflect what happened on that mountain. The witness Anthony Matanga was unknown to the first accused person and was said not to have been part of those whom he ferried to the hospital. The second and last witness to testify for the defence was the third accused person. He too works for Roy Rama Mining Syndicate. He did not know the deceased during his lifetime and was not at the scene of the murder. He had been off duty and had just started work on the 5th of January 2021. He arrived at the office and saw many people and the first accused raising his hand. He forced his way into the crowd and pushed them back as he reminded them that they had elected him as a crime committee member and he could cause their arrest if they did not stop their unlawful conduct. At that point some people started dispersing and the injured sat at first accused’s feet. He confirmed that the first accused then sent Obey to fetch his car and they helped the injured to get into the car. They also walked beside the car to protect it from the riotous crowd and after a short distance they jumped in and went to the police station first. He was arrested on 5 January 2021 after receiving a call from the first accused around 4:00pm and he got to the police between 6:00pm and 7:00pm. It was the already arrested first and fourth accused persons who then explained the charge against them. The third accused denied having thrown a stone which felled the deceased and said the allegations by Admire were lies. The third accused person got to know of the circulating video from the first accused person and had not interacted with the Investigating Officer in the matter. Anthony Matanga was not known to this witness. He did not know the names of those they assisted but insisted that Anthony Matanga was not there. According to this witness, the security guards brought in by Admire Mutede from Harare who had been there for 3 days only, were regarded as hired thugs. With this the defence closed its case. Agreed Facts The evidence from both sides shows that there was a long standing dispute between Roy Rama Mining Syndicate and Makaha Mining Syndicate. The accused persons were employed by Roy Rama Mining Syndicate whilst the deceased was employed by Makaha Mining Syndicate. The disputation was on a mining claim. The parties were no strangers to the courts, having been to Bindura Magistrates Court severally in both civil and criminal matters, the High Court and Supreme Court Annexures A, B and C prove this. It is common cause too that the deceased was killed in the mountain, some 2km from the place where the Makaha car had been parked. This is evident from the evidence of both Admire Mutede and Anthony Matanga and the investigation officer. The first and third accused’s evidence confirmed too that the deceased was not killed by the roadside where the injured were gathered. It is common cause that the six accused persons and the witnesses, Anthony Matanga and Admire Mutede, were in the Mukaradzi area on the day in question. The Disputed Facts and Analysis of Evidence This matter is peculiar in that there are two key witnesses who gave contradictory versions of what happened on the mountain when they fled. Anthony Matanga, who appears in the video and was also assaulted and injured disputes that Admire Mutede was at the scene on the mountain and was running ahead of him. Admire Mutede insists he was there. There are several flaws with Admire Mutede’s credibility. The first thing to note is that he made two statements to the police on the events of 5 January 2021. One relates to an allegation of malicious injury to property under CR 36/01/21 and the other to murder under CR 20/01/21. It is curious that he relates two different versions about what happened. In the first instance at 0800 hours, they were asleep in a wooden cabin with his fellow workmates when the first accused led a mobilized group of gold panners against them and started pelting stones at the car. In the other instance, it was also at 0800hrs on 5 January 2021 when he was relaxed with his workmates in their motor vehicle which was parked along the road outside their guardroom. In this case a pistol was produced by the first accused and pointed at him and he was warned that first accused wanted his head. In this instance a dog was killed and a guard room destroyed. How is it possible that the same person can relate two different versions of the same events which supposedly occurred at the same time. This can only point to untruthfulness by the teller of the tales. In order to bolster his assertion that the accused persons had mobilized the assailants, Admire says that the accused persons drove past in three motor vehicles loaded with persons towards the N.D tuckshops direction and then back towards the river where they parked then the accused persons and the mob came back on foot. Anthony Matanga refuted this and said the motor vehicles did not return. It was a separate crowd which appeared from lower ground. He said they were all in the car except for Admire Mutede, the driver who after parking the car went out to higher ground and was making a call. There can be no dispute about Anthony Matanga’s presence at the crime scene. The video footage confirms so. If indeed Admire Mutede was 10 metres ahead of Anthony Matanga, why would Anthony say he was not there? The sketch plan allegedly drawn by the investigating officer is not helpful. It was not signed by either Anthony Matanga and Admire Mutede and the investigating officer himself. Admire Mutede claimed to have run away from the crime scene to Mt Darwin Police Station for about 12 to 13km. On the contrary, the Investigating Officer averred that the distance is only 5 -7km. Another glaring inconsistency is the claim by Admire Mutede that the deceased and Anthony Matanga had been working at the mining location for more than a month, yet Anthony Matanga said they had only worked for 3 days after being hired by Admire Mutede from Mufakose in Harare. Whilst Admire Mutede said that the deceased had been attacked by the six accused persons only, Anthony Matanga estimated that the assailants were in excess of 20 individuals and none of the accused persons were there. This is confirmed by the video footage admitted as Exhibit A1 – A3. We accept that though the footage does not show the actual striking of the deceased and his falling, this happened contemporaneously with the assault on Anthony Matanga who is seen being assaulted in the video by the same crowd. This is so if regard is had to the utterances of the crowd. Can this court believe the evidence of Admire Mutede that it was the first accused who threw the fatal stone as against the emphatic evidence of Anthony Matanga which is backed up by video evidence that the stone was thrown by the person wearing the orange shirt. In the light of the questionable credibility of Admire Mutede, we elect to believe Anthony Matanga’s version. Anthony Matanga explained that the only reason why Admire Mutede related to how he had retreated towards the deceased with his arms in the air was that Admire Mutede asked him to recount everything, and he did. It did not escape our attention that both Anthony Matanga and the investigating officer said that it was Admire Mutede who had suggested the names of the six accused persons as suspects as Anthony Matanga was new in Mt Darwin, under Admire Mutede’s direction and in a lot of pain after witnessing the death of his friend. There was no identification parade held for Anthony Matanga’s benefit as confirmed by the investigating officer. Despite the relevance of the video footage which allegedly started circulating two days after the 5th of January 2021, and the offer to view it, from the first accused, the investigating officer ignored this vital evidence. He did not get the sketch plan signed; the subpoena was not served on Anthony Matanga whose evidence was running against the State case. The investigating officer himself who had retired only availed himself after a warrant of arrest had been issued. Could all this be said to affirm the first accused’s evidence that some police officers had confirmed that their hands were tied and they had been instructed to arrest the accused persons. Interestingly the list of suspects that the officer in charge had, contained seven names as it had escaped the supplier of such names that one Adonis Marere was not in Mt Darwin on the 5th of January 2021. This is the only reason why he was not arrested. The evidence of Anthony Matanga is more plausible. He was closest to the deceased, just 11 metres away. He was also a friend of the deceased. They had known each other for more than 10 years; they lived in the same neighbourhood in Mufakose and had been employed at the same time and travelled together to Mt Darwin where they spent a lot of time together. When danger loomed and they had to run for dear life, they ran in the same direction. When the deceased called out to him by his nickname “Soldier” that he was tired, Anthony Matanga stopped and turned back and witnessed the deceased’s striking on the occiput with a stone and how he fell face down. Anthony Matanga did not run for dear life but retreated with his hands raised in surrender, hoping to save his friend. The assailants however pounced on him too. The investigating officer says that Anthony Matanga was also badly hurt as evidenced by the video footage. Why, in such circumstances would Anthony Matanga concoct lies? We believe his version of events as the true account. Anthony Matanga’s version of events bolsters the defence case. The six accused persons were not at the crime scene. The Investigating Officer’s evidence was not helpful. He was not at the crime scene and relied heavily on what Anthony Matanga and Admire Mutede told him. He did not investigate the videos despite knowing of their existence and their relevance. His sketch plan is not signed and therefore unhelpful to the court. He did not organize an identification parade to enable Anthony Matanga to identify the murderers. In this case the police woefully failed in their constitutional duty set out in section 219(1)(a) of the Constitution of Zimbabwe. They are supposed to detect, investigate and prevent crime and to uphold the Constitution and enforce the law without fear or favour (section 219(1)(e). The facts in this matter support the accused’s assertion that their arrest was said to be an instruction. Such conduct should not be allowed to happen. It results in a waste of State resources and harassment of citizens. That should not be. The State urged the court to consider the possibility that the “hired thugs” are associated with the accused persons because of the ease with which they turned peacemakers in the face of a mob of 200 people and they were only 6. It was argued that they be held liable of the conduct of the mob in killing the deceased. Though this sounds enticing, it does not consider the first accused’s testimony that someone invited him to quell the disturbances because of his social standing in the community. He was a project manager. The third accused person was in the Crime Committee for the area and had been elected by the same community. There were also other people beyond the six accused persons who assisted in stopping the commotion. It would also not make sense that the six accused persons would end up arrested for the mob actions they were controlling and fail to get the mob members arrested. Given the totality of the evidence before us and the accused persons’ attempts to get these people arrested, there appears to be some other hand protecting these people identified in the video as they walked away scot free despite their identities being known. Factual Conclusions We make the following factual conclusions, The six accused persons were not present at the time and place where the deceased and Anthony Matanga were attacked. They did not know the two prior to the videos that ended up circulating. Anthony Matanga and the deceased were attacked by a mob of over 20 people and none of the accused persons were present. The first accused person was invited to help quell a mob of more than 200 artisanal gold miners who were assaulting 4 individuals whom they accused of being machete gangs. The first accused, with the help of the other accused persons and other people successfully stopped the assaults and ferried the injured to Mt Darwin Police Station then to the Hospital. Exhibits A1 – A3 being video footage in which the accused persons positively identified Talent Zhalendu (in orange t – shirt), Austin Chimutarara (in brown sunhat), Amon (in stripped t shirt) and Admire (sporting dreadlocks not Admire Mutede) as the assailants are relevant to the identification of the actual murderers of the deceased. Anthony Matanga confirmed that Talent Zhalendu threw the stone which fatally wounded the deceased. Conclusion At Law The totality of the evidence and proven facts before us show that the State has failed to prove beyond reasonable doubt that the first, second, third, fourth, fifth and sixth accused persons, one or more or all of them, unlawfully and with an intent to kill, assaulted Donaldson Chakwitisa all over the body with stones thereby causing injuries from which the said Donaldson Chakwitisa then and there died. We therefore find the first, second, third, fourth, fifth and sixth accused persons, not guilty of murder. They are consequently acquitted. Muchawa J: ………………………………………. National Prosecuting Authority, state’s legal practitioners Sinyoro and Partners, accused persons’ legal practitioners

Judgment

THE STATE v JONGA and Others (217 of 2025) [2025] ZWHHC 217 (26 March 2025)

Headnotes

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THE STATE v JONGA and Others (217 of 2025) [2025] ZWHHC 217 (26 March 2025)

Headnotes

Judgment

Similar Cases

Discussion