THREE artisanal miners, who were convicted of a lesser charge of assault after one of them killed a fellow miner with an axe over missing US$165, were sentenced to a wholly suspended two months imprisonment.
Lovemore Musauki, his son Naison and a friend Ellin Joe were released from custody after High Court judge Justice Esther Muremba ruled that they had spent two months in custody on pre-trial.
According to the court documents, the deceased and the accused were not related, but were panning for gold along Ruya River in Mozambique.
On October 25, 2022, the deceased left the panning site and headed to Ndundu village, Chief Nyakusengwa in Rushinga, Mt Darwin.
After he left, Musauki and Joe discovered that their money, amounting to US$165 and 2 200 Meticals, was missing and they suspected that the deceased had stolen it.
The accused caught up with the deceased at Kasika Business Centre in Mt Darwin, where he was drinking beer.
State witnesses Mharidzo Mazengera and Wellington Chipfunde, who had interacted with the deceased at the business centre, confirmed that the deceased had a significant amount of money which they suspected he had stolen and was buying beer for other patrons.
From this description, Lovemore deduced that it was part of the money that had been stolen.
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The accused persons then confronted the deceased, but the deceased denied stealing their money and he became aggressive, resulting in a scuffle.
The deceased then grabbed Lovemore by the shoulders and attempted to punch him.
Lovemore dodged the punches, before his co-accused intervened and manhandled the deceased, forcing him to the ground in an attempt to pin him and tie his hands.
Due to the intervention of bystanders, the accused persons let go of the deceased, who then escaped.
The court heard that when the deceased escaped, he fled from the shops to the nearby village with the accused persons in pursuit.
Upon arriving at Farai Madya’s homestead, the deceased sought refuge in the kitchen and Joe, who was ahead of his co-accused, entered Madya’s yard first.
When Lovemore and Naison learnt that the deceased was hiding in the kitchen, they began searching for tree fibre at Madya’s kraal, approximately 40-50 metres from the homestead, intending to use it to tie up the deceased upon capture.
The deceased then bolted from the kitchen and ran back towards the business centre, and Joe pursued him, after which the others, who were at the kraal, also joined the chase.
When the deceased reached the business centre, he returned to the spot where he had been assaulted earlier on.
He cried out that he had been injured and collapsed between the shops of Runhare and Wellington Chipfunde, bleeding from a back injury.
He asked to be taken to hospital.
An autopsy revealed that the cause of death was internal bleeding from penetrating abdominal trauma.
Justice Muremba in her analysis said it was clear that the fatal injury was the one sustained on the deceased’s back, as witnessed when he returned to the shops, cried out in pain, and asked to be taken to hospital.
“This indicates that the earlier assault, before the deceased fled to the nearby village, was not significant in causing his death.
“It turned out that the fatal injury was inflicted solely by Joe at Madya’s homestead while the other accused were at the kraal, searching for tree fibre to tie up the deceased,” Justice Muremba said.
The State, however, conceded that under the circumstances, Lovemore and Naison cannot be held responsible for the death of the deceased.
“They were not present when Joe struck the deceased with an axe and were unaware of what transpired between the deceased and Joe at Madya’s homestead.
“Their intention in searching for fibre was to apprehend and tie up the deceased, with the stated aim of taking him to the police station. There is no evidence to suggest that the accused persons had a shared criminal objective to kill the deceased during the pursuit.
“Consequently, Lovemore and Naison cannot be held liable for the actions of Joe as there is no indication they foresaw the possibility of Joe striking the deceased with an axe. As a result, they are found not guilty and acquitted of murder,” the judge ruled.
However, the two were found guilty of assault.
Joe, in his defence on striking the deceased with an axe, said he asked Madya to retrieve the deceased from his kitchen and was allowed.
Justice Muremba said in her analysis that it was undisputed that Joe was under attack by the deceased, saying a person under attack at such a short distance is entitled to protect themselves as it is not feasible for the person to turn his back and run for dear life.
“Accordingly, each accused is sentenced to two months’ imprisonment, wholly suspended for five years, on condition that the accused does not, within that period, commit an offence involving violence against the person of another, and for which, upon conviction, the accused is sentenced to imprisonment without the option of a fine,” Justice Muremba ruled.
