SHAMBA AND ANOTHER V THE STATE (36 OF 2025) [2025] ZWSC 36 (12 May 2025)

Judgment No. SC 36/25 Civil Appeal No. SC 524/23 1 REPORTABLE (36)

(1) TAFADZWA SHAMBA

(2) TAPIWA MAKORE v THE STATE SUPREME COURT OF ZIMBABWE GUVAVA JA, MATHONSI JA & MUSAKWA JA HARARE: 20 FEBRUARY 2025 & 12 MAY 2025 A. Masango, for the first appellant K. E. Kadzere, for the second respondent F. I. Nyahunzvi, for the respondent MATHONSI JA: This is an automatic appeal in terms of s 44 (2) (c) of the High Court Act [Chapter 7:06], against the conviction of the first and the second appellants by the High Court (the court a quo) of the crime of murder on 29 June 2023 and their subsequent sentence to death on 2 July 2023. If the appeal had not been automatic, one would have been left wondering what possessed those involved in the appeal to embark on it owing, not only to the overwhelming evidence staked against the appellants, but also to the brutal and senseless manner in which the murder was committed.

The Facts

The facts of the matter make for chilling reading indeed. The late Tapiwa Makore (the deceased), who met his bizarre and gruesome death at the very tender age of seven years, was not only the second appellant’s name-sake, but also his nephew, being the son of the second appellant’s cousin. The first appellant was an employee of the second appellant and some kind of business associate of his, if one were to generously regard the exercise of growing cabbages at a rural garden as a business. Judgment No. SC 36/25 Civil Appeal No. SC 524/23 2 The 17th of September 2020 was a normal day for the community of Makore village under Chief Mangwende in Murewa, on which villagers left their homes to work at the communal gardens. These included the deceased who was also assigned by his mother to tend the vegetables at the gardens. That was so until the appellants decided to put in motion their outlandish plan of growing their vegetable business by killing the deceased, singled out as an ideal candidate by virtue of sharing a name with the second appellant, for ritual purposes. While minding his business at the gardens, the deceased was lured to the second appellant’s homestead on the pretext he would be given food or some other freebies. Once there, he was intoxicated with a very potent illicit brew known in local lingo as “skokiyana,” as a result of which he passed out. Meanwhile, the deceased’s mother alerted other villagers having noticed that the child was missing and a search party was commissioned to look for him. Curiously, the second appellant also participated in the search before retiring home. After nightfall, like a sheep to the slaughter, the deceased was carried to the foot of a nearby mountain where he was butchered. It is Francis Bacon, the iconic English philosopher and statesman, who once said: “There is in human nature more of the fool than the wise.” He should have added that there is also the animal in humans because those humans responsible for ending the deceased boy’s life laid him on some mats while one of them sat on the boy’s stomach and set about cutting him to pieces. First his head was cut off, followed by his hands and then his legs until his whole body parts were dismembered and packed into plastic bags and taken to the second appellant’s homestead. Judgment No. SC 36/25 Civil Appeal No. SC 524/23 3 On the way there, the torso was dumped at a location near a graveyard. It was later dragged by dogs to the homestead of one of the witnesses thereby laying the gruesome crime bare. Later another dog was spotted helping itself to the palm of the deceased. Following investigations, the appellants were arrested and charged with the crime of murder as defined in s 47 (1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations were that on 17 September 2020 at Makore Village, Chief Mangwende in Murewa, they, or one or more of them, unlawfully and with intent to kill, caused the death of the deceased by drugging him with alcohol and chopping off his head, neck, lower and upper limbs with an unknown weapon thereby causing injuries from which the deceased died.

The Trial

Kicking, screaming and loudly protesting their innocence, the appellants were arraigned before the court a quo along with two other persons who were later found not guilty and acquitted following the withdrawal of charges against them at the close of the case for the prosecution. They both pleaded not guilty to the charge thereby setting the stage for a lengthy but very thorough criminal trial. In his defence outline the first appellant stated that, on the fateful day he never saw the deceased even though he had spent the day watering vegetables at the garden with the second appellant and other workers. He added that after work the second appellant provided him and other hangers on with alcoholic beverages at Katsande’s homestead before they received information that the deceased was missing. Judgment No. SC 36/25 Civil Appeal No. SC 524/23 4 The first appellant stated that the following morning he was at the second appellant’s homestead when he received information that a human body part had been discovered and he was part of the group of people that went to view it to their surprise. He explained that even though he was the owner of a pair of blood stained trousers recovered at the second appellant’s homestead, the blood stains were those of a chicken he had recently slaughtered and that even though he owned the blood stained white vest also recovered in his room, the blood was menstruation from a friend’s girlfriend. His friend and his girlfriend had soiled it during sexual intercourse. On the confession he made in his warned and cautioned statement as well as the indications he made to the police which led to the recovery of more body parts of the deceased, the first appellant alleged that they were products of severe assault perpetrated on him by the police after his arrest. He denied killing the deceased as alleged. For his part, the second appellant stated in his defence outline that he was related to the deceased as an uncle and cousin to the deceased’s father. He participated in the search for the deceased in good faith as he never participated in or arranged for the deceased’s murder. While stating that he was not aware of why the first appellant was implicating him in the commission of the offence, the second appellant pitched camp with the former insisting that the blood stains on the first appellant’s pair of trousers were from a chicken slaughtered by the first appellant “only a few days earlier” on his instructions. He continued in that vein asserting that the first appellant was “either coerced or convinced to implicate him.” Judgment No. SC 36/25 Civil Appeal No. SC 524/23 5 The state lined up a total of eight witnesses to prove its case during both the main trial and the trial within-a-trial which became necessary following the first appellant’s challenge to the admissibility of the evidence of indications he made. The trial court found the indications admissible and admitted them as evidence. Only the first and the second appellants gave evidence for the defence. DECISION OF THE COURT A QUO In respect of the trial proper, the court a quo noted that the evidence against the appellants was mainly circumstantial. After meticulously assessing all the evidence that was led, the court a quo concluded that, owing to the inept manner in which investigations were conducted, especially the signal failure to follow up on the DNA tests of the bloodstained apparel of the first appellant, it could not possibly conclude that the blood stains were from the blood of the deceased. It could not completely dismiss the first and the second appellants’ explanation that the blood stains were from a slaughtered chicken “no matter how absurd” the explanation was. The court a quo found that the first appellant freely and voluntarily made indications to the police which led to the recovery of the deceased’s body parts, even those disposed of in a disused pit latrine. It found that the first appellant confessed to the murder to the police in a lengthy warned and cautioned statement which was later confirmed by a magistrate in accordance with the law. The court a quo also found that the two appellants had a cordial relationship as employer and employee and that the first appellant’s blood stained pair of trousers, a five litre plastic container inscribed “Topoto” (the second appellant’s moniker), a small animal tail and black plastic bags similar to those used to carry the deceased’s body parts, were recovered Judgment No. SC 36/25 Civil Appeal No. SC 524/23 6 from the second appellant’s house while a blood-stained vest was recovered from the first appellant’s house. It underscored that after Joseph Nyambuwa’s dog was spotted dragging the deceased’s palm, the second appellant had exhorted Nyambuwa to conceal the evidence by burying it. Finding that it was permissible in terms of s 273 of the Criminal Procedure and Evidence Act [ Chapter 9:07], to convict a person accused of a crime on the basis of his or her confession, the court a quo made the point that in terms of that section, the court does not require any evidence to support the facts stated in a confession even though there is need, apart from the confession, for other evidence to establish that the confessed crime was actually committed. The court a quo then found that the first appellant’s confirmed warned and cautioned statement qualified as a genuine confession that he had killed the deceased. The said confession described “in graphic and sordid detail” how the first appellant kidnapped the deceased, took him to the second appellant’s house where he fed him with illicit beer before locking him in a room until midnight and then taking him to a secluded place. Once there, he systematically dismembered his body parts and disposed of some of them. The court a quo found that almost every fact in the confession turned out to be true when followed up by investigators. It found that the indications which the first appellant made corroborated his confession and that certain items, including the denim shorts hung on a tree were recovered through the first appellant’s confession and voluntary indications. After correctly observing that, according to s 259 of the Criminal Procedure and Evidence Act, the confession of the first appellant, even though it incriminated the second appellant, could not be used against the latter, the court a quo set about carefully Judgment No. SC 36/25 Civil Appeal No. SC 524/23 7 assessing the evidence against him. It noted that the independent evidence relating to his direct participation in the murder was “tenuous.” On its way to finding the second appellant guilty as an accomplice, the court a quo reasoned as follows at pp 41-43 of the cyclostyled judgment: “In this case, although we have discounted his direct participation in the murder for want of evidence, the second accused person is embroiled in its commissions in more than one way. The court found as a fact that after the first accused kidnapped the deceased from the community gardens, he took the boy to the second accused’s house. The deceased was abducted on 17 September 2020 around 1500 hours and remained in accused 2’s house until about midnight of the same day. At the time of the abduction, the evidence before the court is that the second accused was at a beer drink in the village. The first accused locked the boy in accused 2’s house, proceeded to the beer party where accused 2 was. In paragraph 4 of his defence outline accused 1 expressly alleges, which allegation was never refuted by the second accused, that it was accused 2 who supplied the alcohol that they were drinking at Katsande(s) homestead. It is the same alcohol part of which he later took in the container which accused 2 admitted was his to drug the victim. It was inscribed with his nickname. The question which arises is whether the second accused supplied the means for the first accused to commit the crime and or made his premises available for the commission of the murder to bring him within the confines of s 198 (1) (a) and (d) of the Criminal Law Code. The child was locked in his house for many hours. In fact he must have been there for close to eight hours. The second accused person left the beer party and went home that evening. He went home after the futile search for the deceased earlier that night. He did not allege that he slept anywhere else other than at his residence on the fateful evening. It is unimaginable that he would have failed to notice the presence of the child in his house. The first accused said the boy was detained in the sitting-cum dining room of accused 2’s house. After the murder, accused 1 said that same night he returned to accused 2’s house with bags full of the murdered boy’s limbs. He pulled some of them out of the bags and put them in a bucket. The second accused was in the house at the time. It is once more incredible that he did not notice the first accused doing all that he alleges to have done. The police recovered from accused 2’s house black plastic bags similar to those which accused 1 alleged to have used to carry the deceased’s limbs after killing him. They also recovered a small animal tail which accused 1 said had been used in the ritual to dissuade the deceased’s spirit from avenging his death. They further recovered the container inscribed Topoto also from the second accused’s house. Accused 2 supplied the alcohol which was used to drug the boy to facilitate his murder by accused

1. The apparatus in which the alcohol was stored was his. All the paraphernalia mentioned above were linked in one way or another to the commission of the murder by the first accused person. They were discovered as a consequence of police investigations following the confession by accused

1. The law provides for their admissibility….. The court accepts that the evidence pointing to accused 2 providing implements and his premises for the commission of the murder is circumstantial. The requirements governing circumstantial evidence must therefore come into play.” Judgment No. SC 36/25 Civil Appeal No. SC 524/23 8 Having said that the court a quo proceeded to examine the law on circumstantial evidence. In doing so, the court a quo was alive to the fact that it was examining whether the circumstances proved that the second appellant supplied the first appellant with implements and made his premises available for the commission of the offence. It concluded that the only reasonable inference to be drawn from the circumstances of the case was that indeed the second appellant did so. That way both appellants were found guilty of the crime of murder. On 12 July 2023, the court a quo handed down a detailed judgment on sentence. It took the view that the manner in which the two appellants committed the murder showed that they were inherently wicked as they “showed no morality, no sentiment and no conscience” as they went about their task “with the fixation of a predator.” The court a quo drew the conclusion that the murder was committed in aggravating circumstances. Finding its hands tied, the court a quo sentenced the first and the second appellants to death.