GOWORA
JA: On 28 January 2015,
the appellant was arraigned before the High Court sitting at Gweru on a charge
of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23], (the “Criminal Law Code”).
The allegations against him were that on 20 September 2013, at Gore Village,
Chief Nyamhondo, the appellant had caused the death of Chipochashe Ndlovu, a
female juvenile, by forcibly having sexual intercourse with her, and assaulting
her all over her body with an unknown object, intending to kill her or
realising that there was a real risk or possibility that his conduct might
cause her death.
The
appellant tendered a plea of not guilty to the charge. He was convicted of
murder with actual intent to kill the deceased and was sentenced to death.
The appellant noted an appeal against the
sentence of death only. However, in view of the death penalty imposed upon him,
in terms of the law an automatic right of appeal lies against both conviction
and sentence.
The facts giving rise to the charge
against him were as follows. The deceased was a child named Chipochashe Ndlovu.
At the time of her death she was aged 3. Her mother, Kudzai Dube, (Kudzai)
was appellant's common law wife. At the time of deceased's death, the union was
of recent duration. The deceased was not related to the appellant.
It is common cause that the deceased had
been under the care of Netsai Dube, (Netsai) her maternal grandmother since her
birth. When the mother left to go and live with the appellant she took the child
with her. She had not obtained permission and as a result Netsai searched for
their whereabouts. She located them after two weeks and took the deceased home
where she remained.
A few days before her death, Kudzai begged
Netsai to let her take the child for some time. Kudzai claimed that she missed
the child. The grandmother agreed reluctantly. Kudzai then left with the
deceased.
On the fateful day the appellant indicated
to Kudzai that he wanted to take the deceased with him to the bush to fetch
firewood. Kudzai refused to allow him to take the deceased. The appellant
threatened to assault her. She then agreed reluctantly. The two then left.
An hour later, the appellant returned
carrying the deceased on his shoulder. She was unconscious. The appellant
placed her in the bedroom hut. The appellant then informed Kudzai that the
deceased had suffered an epileptic fit whilst they were in the bush. Kudzai
went to check on the deceased. She observed fresh bruises on the deceased's
right forehead. There was blood and froth coming out of the child's mouth. She checked
for a pulse and found none. She deduced that the child was dead and went to
inform her neighbour Makazviita Munengewa of the situation.
The appellant and his brother then
transported the deceased to Netsai's homestead. They arrived during the night
and placed the child in a hut. Unaware, the following morning Netsai proceeded to
her garden from where she was summoned after a short while. On returning home she
discovered that the appellant had brought the deceased's body to her homestead
the previous evening. The appellant was not present. A report was made to the
neighbourhood watch committee who informed the police.
The police attended and advised Netsai to
convey the body to the hospital immediately due the state of decomposition that
had set in. Netsai decided to clean the body of the deceased before it could be
conveyed to the hospital. During the process she observed injuries on the
deceased which led her to conclude that the child had been sexually
molested.
The appellant was arrested shortly
thereafter.
At the hospital, the body of the deceased
was examined by Winnie Gumbo a state registered nurse. The nurse observed injuries
which also led her to form the opinion that the deceased had been sexually
molested.
A few days later, a pathologist, Dr
Pesanai, conducted a post mortem examination and compiled a report. The body was
swollen due to decomposition. The post mortem examination was unable to
establish the exact cause of death. The pathologist was able to amplify the
report during the trial. His conclusion was that the cause of death was a
laceration to the rectum resulting from the rape and the sodomy.
Both in his defence outline and in the
warned and cautioned statement the appellant denied killing the deceased. He
also denied having sexually assaulted her.
In his warned and cautioned statement which
was confirmed before a magistrate, the appellant stated that he took the
deceased to the nearby bush to look for firewood. He sat her on a footpath
while he fetched firewood. After a while he observed that she had fallen to the
ground. He suspected that she had suffered from epileptic fits. He denied
having caused her death.
In the
defence outline he stated that the deceased had accompanied him to the goat pen
within the homestead. She sat on a path whilst he fetched firewood. When he
looked at her next, he observed that she was having fits. She was frothing from
the mouth and had fallen to the ground. He picked her up and carried her to the
homestead where he placed her in one of the huts. She died later on the same
day.
The court a quo concluded that the appellant had taken the toddler into the
bush with him for the sole purpose of killing her.
In coming to this conclusion the court had
regard to the evidence of several witnesses who had access to the body before
it decomposed.
Amongst the witnesses were the two police
officers, Simbarashe Makopa and Freedom Nyamutsamba who attended at the
deceased's grandmother's homestead in reaction to a report of rape and murder.
They found the deceased's body lying in a bedroom hut. Upon examination of the
body, they observed bruises on the right side of the head, the back, the
forehead and the abdomen.
The trial court also took into account the
evidence of the grandmother, Netsai. She had cleaned the body and had observed
that the deceased had bruises on the back and lower abdomen. The body was
swollen on both sides of the neck and there was froth coming out of the
deceased's mouth and nose. Her genitalia was described by the witness as “open”
and there were traces of faeces. From the injuries she observed, Netsai
suspected that the deceased might have been sexually abused. Like the other
witnesses, she had also observed bruises on deceased's back. The witness discounted
the suggestion by the appellant that the deceased had suffered from epileptic
fits, and further that she had died from a bout of fits.
In addition, the court had regard to the
evidence of the nurse who saw the body upon its delivery at the mortuary after
its recovery by the police. This witness testified that the corpse had fresh
bruises on the right eye, fresh bruises on each side of the abdomen just above
the groin and a fresh bruise at the back. The nurse said the bruises on the
abdomen, back and right eye made her conclude that force had been applied to
those areas using fingers.
There was also a fresh bruise just between
the lumber and sacral region of the back. An examination of the genital area
revealed bruising on the labia majora
as well as bruises on both sides of the labia
minora. Although the hymen was intact the nurse was of the opinion that
penetration had been effected.
Her evidence was that the deceased had
been sexually abused. At the time of these events she had been a nurse for twenty-five
years. The trial court found her to be a fair witness with no axe to grind
against the appellant.
The court also considered the evidence of
Kudzai, the deceased's mother. She confirmed what the appellant stated in his
extra-curial statement that he had taken the child to the bush on the pretext
that he was going to look for firewood in the bush. The deceased was in good
health and had never suffered from epileptic fits. Two hours later the appellant
returned. He was carrying the deceased on his shoulder. She was bleeding from
the nose. In addition, she was frothing from the mouth. She denied that the
deceased suffered from epileptic fits as claimed by the appellant.
The pathologist examined the body of the
deceased on 25 September 2013. A period of five days had elapsed from the time
of death.
The pathologist observed a small
laceration measuring 0.5 cm on the child's genitals. The anus was dilated and
there was a laceration inside the rectum itself. The skull plates were open and
had separated. Due to decomposition no obvious cause of death was observed. However,
the examination showed that the child had been sexually assaulted. There was
penetration of the genitalia which went through the anus causing the laceration
in the rectum.
The pathologist candidly admitted that the
body was in an advanced state of decomposition. He was unable to discount the
effects of decomposition on the body. What was certain however was the fact
that the child had been sexually assaulted both through the vagina and the anus.
The assault through the anus caused the laceration in the rectum
which he reported on. His evidence was that the rectum is in the same line with
the intestines. These are strong organs capable of expanding. The rectum like
the intestines can take more pressure than other organs. Because of the ability
to withstand force, the laceration in the rectum could only have come about
through the application of force, in this case a rape. As a result, he
discounted the possibility of the laceration in the rectum having been caused
by decomposition. It was more likely that the cause of the laceration was due
to sexual assault.
On these facts the appellant was convicted
of murder with actual intent to kill. After a finding that the murder was
committed under aggravating circumstances the trial court imposed a sentence of
death.
The grounds of appeal are aimed at the
sentence. They do not challenge the conviction. Nevertheless, it is appropriate
to consider the appropriateness of the conviction before dealing with the
appeal against sentence.
On behalf of the appellant, Mr Muzvuzvu submitted that the
circumstances surrounding the commission of the offence were such that it was
difficult to challenge the appellant's conviction on the charge of murder with
actual intent to kill. He set out for the benefit of the court those factors
which in his opinion confirmed the correctness of the finding of guilt of
murder with actual intent by the trial court.
He said that the appellant floundered when
asked to give a reason why he wanted a three-year-old minor to assist him in
fetching firewood. Protests from the deceased's mother against the proposal
were met with threats of physical assault from the appellant. When the
appellant returned with the deceased he made no attempt to get any sort of help
for the deceased even though he claimed that she was unconscious and not dead.
This belied his assertion that she had suffered epileptic fits when he took her
to the bush to fetch firewood. He then proceeded to prepare food for himself in
the same hut that he had placed her. He was completely unmoved by the lifeless
body of the deceased and he proceeded to eat in the same hut.
The trial court concluded that the
appellant intended to kill the deceased. The finding by the trial court as to
intent was to the effect that the appellant desired to kill the deceased. This
form of mens rea is what is commonly
referred to as dolus directus. In his
book, Principles of Criminal Law 5th ed p 350, the learned author,
Jonathan Burchell defines dolus directus
as follows:
“This is intention
in its ordinary grammatical sense: the accused meant to perpetrate the
prohibited conduct or to bring about the criminal consequence. This type of
intention will be present where the accused's aim and object was to perpetrate
the unlawful conduct or to cause the consequence even though the chance of it
was small.”
The question whether the appellant killed
her with actual intent is a factual one. The determination of the issue of mens rea must relate to the facts
surrounding the commission of the offence with which the appellant was charged
and convicted.
The evidence against the appellant is
largely circumstantial. From the evidence, she had been brutalised. She had also
been sexually abused. She died from injuries as a result of the sexual abuse.
He was, on his own admission, the last person to see her alive. He admitted in
his warned and cautioned statement that when he returned home with her she was
unconscious. When he took her from her mother she was walking on her own two
feet. The only inference is that he was the one who abused her sexually
resulting in the state that she was in upon their return to the homestead.
The issue for determination therefore is
whether or not the court a quo was
correct in its conclusion that the only possible inference in the circumstances
of this case is that the appellant killed the deceased with an actual intent to
kill her.
The test on inferential reasoning was set
by WATERMEYER JA in R v Blom 1939 AD
188. It was stated therein that there are two cardinal rules of logic in such
enquiry. At pp202-3, the learned jurist said the following:
“In reasoning by
inference there are two cardinal rules of logic which cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the proved facts.
If it is not, the inference cannot be drawn.
(2)
The proved facts should be such that
they exclude every reasonable inference from them save the one sought to be
drawn. If they do not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct”
In this case the proven facts are the
following. The deceased's body was in
such an advanced state of decomposition that the pathologist was unable to
establish the exact cause of death. As a result, the post-mortem report is
silent as to the actual cause of death. However, the tenor of the evidence of
the witnesses who saw the deceased shortly after the appellant brought her home
from the bush bears testimony to the application of force to her body as well
as her private parts. In view of the evidence of the pathologist that the
proximate cause of death was the laceration to the rectum, the question before
the court is whether, by raping the deceased in the manner described by the
pathologist, the appellant meant to perpetrate the prohibited conduct or bring
about the criminal consequence. The prohibited conduct in this case is the murder
of the deceased by the appellant. Did he mean to cause her death in acting as
he did?
In R
v Kewelram 1922 A.D 213, the court had to consider whether an accused
person charged with setting fire to his stock in order to defraud an insurance
company had been properly convicted of arson by a jury in relation to the store
in which the stock was. The building itself belonged to someone else. At p 216
INNES C.J. resolved the question in this manner:
“The jury were
satisfied that the accused must have realised the consequences of his action.
Realising that the fire must spread from the stock to the building, he, for his
own fraudulent purposes, set fire to the stock. Under these circumstances the
inference of a wrongful intention to burn the store was amply justified. Nor
did I understand that Mr Hoexter
seriously disputed that proposition. He contended that although an intention to
burn the store might be implied, it did not follow that there was an intention
to injure the owner. The latter, it was suggested, might have been over-insured
and the intentions might have been to benefit him. But motive in most cases can
be gathered from action. And the wrongful and deliberate setting fire to the
building of another is an act from which it is legitimate to deduce an
intention to injure that other. Such a deduction is founded upon a knowledge of
human nature and of the ordinary course of human affairs. The inference may be
disproved by the wrongdoer; but unless disproved it stands.”
In R
v Mashanga 1923 AD 11, INNES CJ, affirmed the approach of the court in
Kewelram (supra) in the following
terms:
“Now to constitute
the crime of malicious injury to property, malice is a necessary element. But
by that is meant legal malice, not necessarily personal spite against the owner
of the injured property. All that is necessary in our law to the constitution of
the crime is an intentional wrongful injury to the property of another. Upon
proof of the wrongful intention the Court will presume malice; that presumption
may be rebutted, but until displaced it stands. As Mr Fischer said, the matter
has really been concluded by our decision in Rex v Kewelram (1922, A.D. 213).
It was there laid down that to support an indictment it was not necessary for
the Crown to establish the existence of a specific intention to injure the
owner of the property, but that such intention could be inferred from the
realisation of the fact that the burning of stock in a building would result in
the burning of the building.”
The evidence on the injuries observed on
the body of the deceased paints a horrific picture of the agony that the
appellant put the deceased through.
The deceased was aged 3. She was virtually a baby. She should not, by
any stretch of the imagination, have been considered an object of sexual
desire. She walked from the homestead but returned lifeless, a mere hour later.
She was on the appellant's shoulder. She was bleeding from the nose and had
froth coming out of her mouth. In the absence of a pre-existing condition, the
nose bleed was most probably caused by the application of force to that part of
her face causing the nose to bleed.
The nurse who admitted the deceased's body
observed fresh bruises on the right eye. There was also bruising on each side
of the abdomen. The grandmother observed swellings on both sides of her neck. In
my view, the injuries point to the application of force around her throat
resulting in her frothing from the mouth. Taken together, these injuries
suggest that the deceased was lying with her face on the ground. In order for
the appellant to perpetrate the rape per anum
the deceased would have to be lying on her stomach.
Both witnesses described bruising on the
back. The open genitalia which had
faeces confirms that she was raped and further that after sodomising her at
some point he perpetrated a frontal assault leaving faeces in the genitalia. From the bruises and injuries
observed on the body, it was the conclusion of the pathologist that the
deceased had been sexually abused both per vaginum
and anum. As a result of the sexual
abuse there was a laceration in the rectum. A laceration of this nature would
cause bleeding which could be fatal. She died as a result of the assault.
The evidence on the sexual assault leads
one to conclude that the appellant intended to rape and assault the deceased.
In order to give effect to his intent, the appellant took her to the mountains
against the will of her mother. He subjected her to such a vicious sexual
assault that he tore her insides causing her to die from the injuries inflicted
from the assault.
Given the age of the deceased and her body
size, it can be said that the death of the deceased was the appellant's aim and
object. He could not give a reason why he wanted a three-year-old juvenile to
accompany him to the bush to fetch firewood. When her mother indicated her
unwillingness for the child to accompany him he threatened her with physical
assault. He kept her in the bush for two hours only to return with her lifeless
body on his shoulder. He callously laid her body in the kitchen hut where he
proceeded to prepare food for himself and eat it. He made no attempt to obtain
medical assistance for her, even from the child's own mother. He then
surreptitiously conveyed her to her grandmother's homestead for burial during
the night. He made no effort to advise the grandmother of the child's passing. It
is also common cause that he and Kudzai had previously taken the deceased away
from the grandmother's home without permission. The grandmother was only able
to locate her after two weeks.
A wrongdoer is presumed to have intended
the natural consequences of his actions. In view of her age, her small body and
the manner in which he perpetrated the sexual assault on her, it is clear that
the appellant contemplated and foresaw that the deceased would sustain serious
injuries that would have irreparably and extensively damaged her small
undeveloped body. It must have been in his contemplation that her pubescent
body could not withstand such an assault and that serious harm would be
occasioned to her from the assault. As a consequence, he must be presumed to
have intended to cause her death. The only inference is that he abused her
sexually and that he foresaw her death from the assault. Given the proven
facts, it is inevitable to conclude that in the eyes of the law he intended to
kill her and he in fact desired her death. I am satisfied, on these facts, that
the appellant was properly convicted of murder with an actual intent to kill
the deceased.
The appellant was charged and convicted in
terms of s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], (the “Criminal Code”). That section, which
has since been amended to accord with the Constitution, provided as follows:
47 Murder
(1) Any
person who causes the death of another person
(a) intending to kill the other person; or
(b) realising that there is a real risk or possibility that his or
her conduct may cause death, and continues to engage in that conduct despite
the risk or possibility;
shall be
guilty of murder.
(2) Subject
to s 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a
person convicted of murder shall be sentenced to death unless;
(a) the convicted person is under the age of eighteen years at
the time of the commission of the crime; or
(b) the court is of the opinion that there are extenuating
circumstances;
in which event the convicted person shall be liable to imprisonment for
life or any shorter period.
On a proper and literal construction, s
47(2) as it was prior to the amendment, requires that a person convicted of
murder be sentenced to death in terms of s 337 of the Criminal Procedure and
Evidence Act, [Chapter 9:07], (the
“CP&E Act”). Therefore, a court which convicts an accused person of murder
must have regard to the provisions of s 337 to pass a sentence that is in
accordance with the law.
In turn, as at the date that the appellant
was convicted and sentenced, s 337 read in relevant part:
“337 Sentence of death for murder
Subject to section three hundred and thirty-eight,
the High Court—
(a) shall pass sentence of death upon an
offender convicted by it of murder:
Provided that, if the High Court is of the opinion
that there are extenuating circumstances or if the offender is a woman
convicted of the murder of her newly-born child, the court may impose
(a) a sentence of
imprisonment for life; or
(b) any sentence other than the death sentence
or imprisonment for life, if the court considers such a sentence appropriate in
all the circumstances of the case.”
In casu, having found the appellant guilty of murder with actual
intent, the trial court invited counsel for the defence and the state to
address it in relation to the question of sentence. The record reveals that counsel
premised their addresses on the provisions of s 48 of the Constitution of
Zimbabwe Amendment (No. 20) 2013. It is common cause that both counsel related
their respective addresses to the question of whether or not the murder of
which the appellant had been convicted had been committed in aggravating
circumstances. Neither made reference to s 47(2) of the Criminal Code or s 337
of the CP&E Act.
Consequently, in passing sentence, the trial
court invoked s 48(2) of the Constitution. As prayed by the State counsel, the
trial court exercised its discretion under s 48(2) on the issue of
aggravating circumstances. The court was unable to find anything that would
justify the imposition of a sentence other than death. It imposed the death
penalty upon the appellant.
At the hearing of the appeal this court
enquired from the legal representative of the appellant and the state as to the
appropriateness of the sentence. The question bedevilling the court was whether
or not a trial court can impose a death sentence on a person convicted of
murder with actual intent without reference to s 337 of the CP&E Act. Neither
counsel was in a position to assist. We are indebted to Mr Zhuwarara who successfully applied to assist the court as an amicus curia. He filed detailed
submissions on the question posed.
It is not in
dispute that s 337 constitutes part of the law of this country. Section 10 of
the 6th Schedule of our Constitution has specifically provided for
the continuation and efficacy of all laws in existence at the date of promulgation
of the Constitution. It seems to me that the trial court was aware that the
provisions of s 337 were in conflict and inconsistent with s 48 of the
Constitution. This section read as follows:
2 Supremacy of Constitution
(1) This Constitution is the supreme law of Zimbabwe and any law,
practice, custom or conduct inconsistent with it is invalid to the extent of
the inconsistency.
(2) The obligations imposed by this Constitution are binding on every
person, natural or juristic, including
the State and all executive, legislative and judicial institutions and
agencies of government at every level, and must be fulfilled by them.
48 Right to life
(1) Every person has the right to life.
(2) A law may permit the death penalty to be imposed only on a person
convicted of murder committed in aggravating circumstances, and—
(a) the law must permit the court a discretion whether or not to
impose the penalty;
(b) the penalty may be carried out only in accordance with a
final judgment of a competent court;
(c) the penalty must not be imposed on a person—
(i) who was less than twenty-one years old when the offence was
committed; or
(ii) who is more than seventy years old;
(d) the penalty must not be imposed or carried out on a woman;
and
(e) the person sentenced must have a right to seek pardon or
commutation of the penalty from the President.
(3) An Act of Parliament must protect the lives of unborn children, and
that Act must provide that pregnancy may be terminated only in accordance with
that law.
The Constitution
is the supreme law in Zimbabwe land and all laws and legislative instruments
must be construed in such a way as to give efficacy to the provisions of the
Constitution. The Constitution requires that the death penalty may be imposed
upon a person convicted of murder committed under aggravating circumstances in
terms of a law. However, per contra,
the CP&E Act provides for the death penalty unless there are extenuating
circumstances surrounding the commission of the offence. This clearly is in
conflict with the provisions of s 48 (2). In addition, there are a number of
inconsistencies apparent in the Constitution and s 337. These are the
following. The Constitution provides that the court has a discretion as to
whether or to impose a death penalty, s 337 is peremptory in its terms, in that
a court which is unable to find factors of extenuation must impose the death
penalty. The Constitution provides that no court may impose a penalty of death
upon a woman convicted of murder whereas in terms of s 337 only a pregnant
woman is exempted from the imposition of the death penalty.
It is clear
that s 47 of the Criminal Law Code and s 337 of the CP&E Act are
inconsistent with s 48(2). When regard is had to the provisions of s 2(2) of
the Constitution a court which convicts an accused person of murder can only
sentence such an accused person to death in terms of a law which provides for a
murder committed in aggravating circumstances.
It is common
cause that as at 30 January 2015 when the appellant was sentenced no such law was
in place. Although the trial court made no reference to s 337 it was correct in
accepting that in view of its inconsistency with s 48 of the Constitution, s
337 was invalid and therefore could not be given effect to. The trial court
sought to rely on s 48(2) of the Constitution to pass the sentence of death. In
my view the court was wrong in simply ignoring the section, it should have made
mention of the offending provision and given its reasons as to why it would not
sentence the appellant in accordance with the same.
The court a quo however completely overlooked the
section and went on to sentence the appellant in terms of s 48(2) of the
Constitution. The court was clearly in error as s 48 of the Constitution is not
an operative provision for purposes of sentencing. It does not specify what
sentence the court may pass upon a person convicted of murder. It is a section
which defines and sets outs out fundamental rights of a person convicted of
murder.
In addition,
and most fundamentally, s 48(2) requires that the death penalty be provided for
in a law permitting a court to pass sentence for a murder committed in
aggravating circumstances. Therefore, it stands to reason that s 48 is not such
law. In my view, it is an enabling provision for the promulgation of the
necessary law. In the absence of the contemplated law therefore the trial court
could not pass a sentence of death. To do so would be a violation of s 48(2).
Parliament
has now complied with the provisions of s 48(2). The General Laws
Amendment Act 3 of 2016 has made provision for the amendment of s 47 of the Criminal
Law Code.
Consequently,
in so far as the trial court ignored the provisions of s 377 of the CP&E
Act in its consideration of the appropriate sentence, the sentence it passed
was invalid. The sentence was passed outside the law and cannot stand. The
sentence therefore is set aside and the matter is hereby remitted to the trial
court for the same to consider sentence in terms of the law.
Accordingly, it
is ordered as follows:
1. The
conviction of the appellant on a charge of murder with actual intent is upheld.
2. The appeal against sentence is allowed.
3. The
sentence of death is set aside and the matter is remitted to the same court for
consideration of and the passing of an appropriate sentence in terms of the
law.
GWAUNZA JA I agree
MAVANGIRA AJA I agree
Muzvuzvu
& Mguni Law Chambers, appellant's legal practitioners
National Prosecuting Authority, respondent's legal
practitioners
