Online Reporter
Nyore Madzianike, Senior Reporter
UNIFORMED members, who happen to be trained or those in legal possession of firearms, must never use them in society unless in a war set up, a High Court judge has said.
Bulawayo High Court judge Justice Naison Chivayo made the sentiments while sentencing three Beitbridge soldiers – Ngqabutho khoza, Emmanuel Kandidzanwa, Oscar Mutambisi, who were convicted of killing a member of the Zion Christian Church (ZCC), Jervas Masvina, sometime in July 2019.
Masvina and his church members had gathered at their church shrine, which is about 700 metres away from International Organisation of Migrants (IOM) offices and opposite to Beitbridge Airstrip, where they intended to conduct an all-night prayer session in the bush.
The trio was initially charged with murder, but Justice Chivayo found them guilty of culpable homicide before sentencing them to eight years in jail.
Justice Chivayo suspended three years of their sentence for five years on condition that each of them does not commit a similar offence within that period, leaving them to serve five effective years.
In sentencing the trio, Justice Chivayo said:
“This court, therefore, frowns at people who remove God given gift of life. In this case, the mission of the offenders was to arrest smugglers in the event that they were smugglers,” he said.
“It has turned out that there was nothing related to any smuggling that was taking place. The deceased died clinging to his bible and a church stuff through the negligence of the accused.
“The sentence this court is going to deliver is such that a clear message must be sent to people out there that those who happen to be trained or those who happen to be in possession of firearms legally, they must never use them unless if it’s a war set up.”
Khoza had denied the allegations, saying he accidentally discharged the firearm while tussling with one of the congregants, whom he suspected to be a smuggler.
He told the court that during that time, the suspected smugglers were also throwing stones at him, and one of them hit him on the right eye.
Kandidzanwa and Mutambisi told the court that they had no firearms on the fateful day.
Justice Chivayo, however, concluded that the trio acted in common purpose, which resulted in Masvina’s death.
“They all knew amongst themselves that the one who was armed was the 1st accused (Khoza) and this is the very reason why he was taking the lead. And that it was confessed and not denied that they strategically positioned themselves like that.
“It was the evidence of the State witness that the three left the body of the deceased running away, promising to come back with a motor vehicle.
“Therefore, that the three were acting in common purpose has been proved in that the 2nd and 3rd accused did not withdraw, they were always at the scene.
“They have, however, told this court that they tactfully withdrew from the scene and they ultimately met at the barracks. This court is satisfied that indeed the three from the onset till the end were acting with a common purpose,” he said.
The State had it that on July 27, 2019, the Masvina, his wife and other ZCC church mates drawn from Beitbridge sections boarded a Toyota Wish which was being driven by its owner Tsungirirai Ziteya, who was also a church member.
They proceeded to their church shrine, which is about 700 metres away from the International Organisation of Migrants (IOM) offices, Beitbridge and opposite Beitbridge Airstrip, where they were to conduct an all-night prayer session.
At about 7:30 pm on the same day, they parked about 28 metres before their church shrine and members began to disembark from the car.
At the same time, the three, who were all serving members in the Zimbabwe National Army, appeared from the darkness wearing their military camouflage uniforms.
Khoza was armed with a service AK47 rifle. They were suspecting that the ZCC members were smugglers of tobacco cigarettes, intending to enter South Africa through an illegal crossing.
Without identifying themselves, they ordered everyone to lie down, but Masvina and some of his churchmates resisted, which prompted Khoza to fire two shots from his service rifle.
One of the shots hit the deceased at the back and exited through the left side of the chest.
