S v Madzokere & Ors (HH 523-16)

THE STATE

versus

  1. TUNGAMIRAI MADZOKERE
  2. YVONNE MUSARURWA
  3. LAST MAYENGEHAMA
  4. LAZARUS MAYENGEHAMA
  5. PHENEAS NHATARIKWA
  6. EDWIN MUINGIRI
  7. PAUL NGANEROPA

HIGH COURT OF ZIMBABWE BHUNU J

HARARE, 12 March 2012; 19 April 2012; 05-07, 11, 13-14, 18-19 & 25-28 June 2012;

4,16, 19 July 2016; 10, 12-13, 17-19 & 24-27 September 2012; 10-11, 16-18 & 31 October 2012; 5-8, 12-13, 16, 30 November 2012; 5 December 2012; 30 January 2013; 11-13, 20, 25, 27-28 February 2013; 8 & 11 March 2013; 2 & 23-24 April 2013; 12 June 2013, 19 September 2013; 16, 21 & 29 January 2014; 28 February 2014; 24 -25 & 31 March 2014; 9 - 10 & 12-13 June 2014; 17 & 28 July 2014; 15, 18 & 25 September 2014; 1 & 21 October 2014; 15 April 2015; 6 September 2016

Assesors:                                 1. Mr Musengezi

                                                2 Mr Mhandu

Criminal trial

E Nyazamba and P Mpofu, for the State
Mrs B. Mtetwa, G. Mutisi, C. Kwaramba,

J. Bamu and T. Zhuwarara, for the defence

BHUNU J: The 7 accused persons are charged with murder as defined in s 47 of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. In the alternative or concurrently they are charged with public violence as defined in s 36 of the Act. They were initially jointly charged with 22 others who were discharged at the closure of the State case.

The seven are alleged to have murdered a policeman on duty, inspector Petros Mutedza at Glen-View 3 Shopping Centre on 29 May 2011 in the course of politically motivated mob violence, acting in common purpose and consort.

The facts giving rise to the charges are by and large common cause as there is no serious dispute concerning the bulk of the circumstances leading to the death of inspector Mutedza on the day in question.

It is not in dispute and a matter of common cause that on 29 May 2011 members of a political party going by the moniker MDC-T were gathered at Glen-View 4 Shopping Centre to celebrate .what they termed the T/Shirt visibility day. They were feasting, drinking, roasting and merry making in their common purpose to project the visibility of their political party in the area.

The political gathering was however unsanctioned in terms of the prevailing laws and regulations of the country. For that reason the police deemed the gathering to be unlawful. As a result, the deceased was tasked to lead a troop of 7 police officers to go and disband the unlawful gathering.

The troop comprised the deceased, assistant sergeant Chikwanda, sergeant major Mutsigwa, constables Solomon Mushaninga, Magonagona, Magutarima and Dehwe. Enroot to Glen View 4 Shopping Centre they passed through Glen- View 4 Police Station where they were joined by inspector Nyararai before proceeding to Glen-View 4 Shopping Centre to disperse the unlawful gathering. Inspector Nyararai was familiar with the area and knew some of the participants in the MDC-T, T/shirt visibility day.

At Glenview 4 Shopping Centre they confronted and ordered the group of MDC-T activists that was drinking, roasting meat and merry making to disperse. The activists did not resist but successfully negotiated for permission to finish roasting their meat before dispersing.

After finishing roasting their meat the activists relocated to Glenview 3 Shopping Centre to continue with their unsanctioned celebrations previously aborted at Glenview 4 shopping Centre. The relocation to Glenview 3 Shopping Centre was clearly an act of defiance of the order to disband the unlawful gathering.

Upon learning of the group’s relocation to Glenview 3 Shopping Centre, inspector Mutedza and his details followed in hot pursuit to once again disperse the unsanctioned gathering. They however met with stiff violent resistance when they confronted the group at Glenview 3 shopping centre leading to the tragic death of Inspector Mutedza in the ensuing melee.

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2016