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HHH458-18 - THE STATE vs KIZITO MUTSURE

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Family Law-viz domestic violence.
Procedural Law-viz rules of evidence re hearsay evidence iro the dying declaration.
Procedural Law-viz rules of evidence re heresy evidence iro the dying declaration.
Procedural Law-viz rules of evidence re circumstantial evidence iro inferential reasoning.
Procedural Law-viz final orders re entitlement of litigants to written reasons for judgment iro interlocutory proceedings.
Procedural Law-viz final orders re entitlement of litigating parties to written reasons for judgement iro interim proceedings.
Legal Practitioners-viz professional ethics.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Procedural Law-viz rules of evidence re improbable evidence.
Procedural Law-viz rules of evidence re implausible evidence.
Procedural Law-viz rules of evidence re hearsay evidence iro the doctrine of res gestae.
Procedural Law-viz rules of evidence re heresy evidence iro the doctrine of res gestae.
Procedural Law-viz rules of construction re statutory provisions iro ex post fcto laws.
Procedural Law-viz rules of interpretation re statutory provisions iro ex-post facto legislation.
Procedural Law-viz rules of construction re statutory provisions iro retrospective interpretation of statutes.
Procedural Law-viz rules of interpretation re statutory provisions iro retrospective construction of statutes.
Constitutional Law-viz constitutional rights re rights to a fair trial iro speedy trial.
Constitutional Law-viz fair trial rights re rights to a speedy trial iro pre-trial incarceration.
Constitutional Law-viz rights to a fair trial re speedy trial iro pretrial incarceration.
Constitutional Law-viz constitutional rights to a speedy trial re pre-trial incarceration iro section 167 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Domestic Violence re: Approach and the Peace Order


The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused pleaded not guilty to the allegations, that, on 23 October, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her alight with the result that Modester Chikaka suffered severe burns all over her body which in turn led to her death on 26 October 2011.

The accused elected to give a Defence Outline in support of his plea of denial.

The upshot of his Defence Outline was to the effect that the deceased poured paraffin on herself and set herself alight and that he did not pour paraffin upon the deceased nor setting her alight. He outlined that he confronted the deceased in connection with her “suspected numerous extra marital affairs” since the deceased was his wife. He further outlined that the deceased in fact poured paraffin from a stove upon herself and “somehow” went ahead to and lit herself despite the accused's attempt to stop the deceased from doing so.

He stated that the deceased, after setting herself alight, tried to “embrace the accused person intending to cause harm to him but he managed to slip away going out of the room.”

He outlined that he assisted the deceased to “put off the fire by pouring some water on her at the water tape which was near the house.”

He also further “extinguished the fire which was burning inside the house in question.”

In manner of speaking, the accused's defence was simply, that, the deceased intentionally brought about her death, or committed suicide, by pouring paraffin upon and setting her body alight.

The State opened its case by tendering and producing, by consent of the accused, two affidavits sworn to, respectively, by doctors Ndekwere and Munhumeso.

The affidavit by Dr Ndekwere was produced as exhibit 1.

He examined the now deceased following her transfer from Chivhu Hospital to Harare Hospital on 23 October 2011 around 10:20 hours. He observed and commented that the deceased had suffered 76% open flame burns on her torso, lower, and upper limbs, as well as on the neck. The doctor recommended that the patient should be admitted in the Burns Ward at the hospital.

Exhibit 2 was also a medical affidavit prepared by Dr Munhumeso who examined the now deceased on 23 October 2011 around 0300 hours at Chivhu Hospital. He observed that the now deceased had sustained paraffin burns on the chest, abdomen, and both upper limbs. He stablilized the patient and caused the patient's transfer to Harare Central Hospital for further management after noting the seriousness of the burns which he assessed to be about 35% surface burns.

Another exhibit produced by consent was the accused's confirmed warned and cautioned statement as exhibit 3.

The statement was confirmed by the magistrate on 16 November 2011 following its recording on 2 November 2011.

The accused's statement was to the following effect, quoted verbatim:

“I have understood the caution, but I am denying the charges. On the day in question, I arrived at Modester Chikaka's house at around 0130hrs. She opened the door and I went inside the house and set on a chair. After greetings, I then told her that I wanted to discuss some stories, which were circulating in town, of her affairs with other men. I told her that I was not happy about that because it was embarrassing me.

After I had told my story, that is when Modester Chikaka woke up from the bed where she was sleeping and put on her skirt and blouse, sat on a chair on the other side of the table. She did not respond to any of the questions I put to her.

She got up from where she was seated and picked up a paraffin stove, which was next to the bed, opened it, and poured the paraffin on her clothes. She put the stove on the floor. I then stood up and went to where she was after I had noticed that she was looking for some matches. When I grabbed her, she was already having some matches in her hand. I got hold of her hands so that she could not lit the matches.

We struggled with each other in the house until I managed to take the matches from her.

She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding.

Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tap where she poured some water on her.

I followed her to the tap, helped her to extinguish the fire.

I then went into the house to extinguish fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time. I then boarded Cst Miti's car and went to the hospital. We further visited the police station where I was arrested and Modester Chikaka was taken to the hospital.”

It is important to note the following significant points and conclusions from the statement:

(i) The deceased had already retired to bed at the time that the accused arrived at the deceased's house around 0130 hours. The deceased opened the door, let the accused inside, and the latter sat on a chair.

(ii) The accused confronted the deceased to discuss rumours circulating in Chivhu town, that the deceased was having affairs with other men; such rumours being an embarrassment to the accused and over which he was unhappy.

(iii) The deceased did not respond to the accusations, but, instead, left the bed where she had gone back to sleep, put on her skirt and blouse and sat on a chair on the other side of the table from which the accused sat.

(iv) The deceased, without saying anything, stood up from the chair, picked up a paraffin stove which was next to the bed, opened it, and poured the paraffin on her clothes.

(v) The accused stood up from his chair after noticing that the deceased was looking for some matches. He managed to grab the deceased's hands which were holding some matches so that she would not light the matches. The accused and the deceased struggled with each other and the accused succeeded in taking away the matches from the deceased.

(vi) After the accused had dispossessed the deceased of the matches, the two returned to their sitting positions on the chairs which they had been sitting on before the struggle for possession of the matches.

(vii) For the next ten to fifteen minutes, the accused continued to interrogate the deceased in regard to the same rumours, that the deceased had boyfriends. The deceased did not respond to the accusations.

(viii) As the accused was still seated, the deceased got up from where she was seated, picked up another “matches” struck a match stick and lit herself before the accused could get close to where the deceased was.

(ix) The deceased, after setting herself ablaze, embraced the accused whilst she was screaming. The accused was able to open the door as the deceased was still in an embrace on him and she was crying.

(x) When the door was opened, the fire burned heavily. The deceased then ran to the tap where she poured water on herself. The accused followed and assisted the deceased to extinguish the fire.

(xi) The accused returned to the house, went inside, and extinguished the fire which was burning there. It was then that the deceased informed her neighbours that the accused had burnt her.

(xii) The accused did not dispute the accusation because to him it was a waste of time.

It was therefore clear, on the accused's account, as given to the police, that, the deceased and the accused were engaged in a disagreeable discussion when the tragedy took place.

The accused's explanation to the police was therefore simply, that, when he confronted the deceased about rumoured affairs which the deceased allegedly had with other men the deceased neither denied the accusation nor admitted them. Her response was to open the paraffin stove, pour paraffin upon herself, and attempting to burn herself before being disabled by the accused where after she sat back on the same chair that she had been seated on before her failed attempt to burn herself.

Another follow up interrogation of 10–15 minutes resulted in the deceased reaching for another box of matches and setting herself alight before embracing the accused whilst screaming.

The accused opened the door to the house/room whilst the deceased still held him in an embrace. The deceased then ran to the water tap and poured water on herself with the accused following and assisting her. The deceased reported that the accused had burnt her, an accusation which the accused did not contest because to do so would have been waste of time.

At this stage, it is necessary to note, that, the accused's confirmed statement, whose contents have been outlined, will, as provided in section 256(1) of the Criminal Procedure and Evidence Act, be taken as evidence against the accused, there being no challenge to its admissibility or authenticity.

Accordingly, the statement will be considered together with all other evidence adduced by the State in assessing the sufficiency of evidence led in support of the charge or allegations against the accused.

The State also led evidence from three witnesses, namely, Tawanda Miti, Nyasha Tsopotsa, and Sekai Guramatunhu. The summary of the evidence of these witnesses was as outlined hereunder:

Tawanda Miti

Is a police officer with CID and is based at Southerton Police Station, Harare. When the incident in this matter took place, he was stationed at Chivhu police station. He knew both the deceased and accused as lovers. The deceased and the witness shared the same residence where they lived in adjoining rooms sharing the same veranda. The residence was in the form of a standard block with partitioned rooms each room with its entrance door which was accessed from the veranda. When one is standing on the veranda, the doors to the rooms lead into the rooms from the veranda. The deceased occupied one room at the furthest end. The witness used the next two rooms after the deceased's room and the fourth room door led into the common washroom and toilet. Behind the toilet was a water tap.

There was no dispute as to the make-up of the residence and the rooms.

He testified that he had retired to bed with his wife when he woke up around 2:00am to screaming by a person calling out his name. He got out of bed, opened the door, and got out of his room. He then saw fire flames inside the deceased's room. He was shocked by the spectacle. He then saw the accused arriving on the veranda and he ordered the accused to put out the fire. He next observed the deceased coming from behind the residence in the direction where there was a water tap. He observed burns on the deceased.

He then heard the deceased to say to the accused: “why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased went on to tell the witness that the accused had poured paraffin on her and lit her up.

The deceased also said that the accused had the matches on him, to which the accused responded that the deceased had poured paraffin on herself.

The witness, at this stage, instructed his wife to cover the deceased with a blanket after where the witness provided his vehicle and ferried the deceased and accused to the police station where the accused was placed under arrest and the deceased ferried to hospital.

The State counsel asked the witness to repeat the exact words which the deceased reportedly uttered to the witness when the witness came out of his room to check on what was happening. The witness said:

“She said accused took paraffin from a paraffin stove and poured on her. He then took a matchstick, lit it, and threw it at me. She then went out of the house to pour water on myself whilst screaming.”

The witness further repeated, that, the deceased, when coming from the tap, said: “why did you not set yourself ablaze too since you wanted both of us to die? Why have you killed me?”

Asked whether the accused responded, the witness responded that the accused answered: “I did not kill you. You poured paraffin on yourself.”

The witness said that the accused proceeded to extinguish the fire in the house after coming on to the veranda from the direction of the tap as per the witness assumption.

Under cross-examination, the witness admitted that he did not know for a fact as to who poured paraffin on the deceased. He also did not witness the accused setting the deceased on fire.

The witness was asked: “You did not hear her calling out that accused had set her ablaze whilst you were in your room?” and he responded; “She was saying that. She said so as she called out for my help.”

The witness agreed that in his witness statement, recorded on 3 November 2011, he did not mention that the deceased had shouted that the accused had set her ablaze.

The witness said that the omission could have been a result of oversight.

The witness agreed that he could not deny that the accused assisted the deceased to douse off the flames at the tap.

The witness agreed that the accused denied that he had set the deceased ablaze when the deceased was making the accusation.

He agreed that the accused had responded that the deceased poured paraffin on herself.

The witness said that prior to hearing the screaming which woke him up, he did not hear any commotion whilst he was asleep.

He said that the accused was searched at the charge office and found to be having a box of matches in his pocket. The witness agreed that in his recorded statement he stated that the accused explained his possession of the matches by saying that he took the box of matches from the deceased.

The court's assessment of the evidence of this witness was that he was an honest and impressive witness who gave a simple narration of the events which he witnessed. The cross examination of the witness was not eventful because he maintained his story.

His evidence was clear, that, the deceased accused the accused person of pouring paraffin upon her and setting her ablaze with matches. His evidence was equally clear that the accused responded to the allegation by denying the accusation and instead accusing the deceased of having poured paraffin on herself and set herself ablaze.

It was not suggested to the witness that the deceased did not name the person who had harmed her. What was put to the witness in cross-examination was that the accused denied the allegation.

It was not denied that the deceased went further to ask the accused as to why he had not equally poured paraffin upon himself so that he dies together with the deceased as he had wished or declared.

It was not denied that the deceased uttered the words: “why have you killed me?”

The court, having been impressed by the demeanour of the witness, his self-confidence, and standing unshaken under cross-examination, accepted the evidence of the witness as reliable.

The next witness was Nyasha Tsopotsa, the wife of the last witness.

She testified to having been asleep with the last witness when she heard screaming sounds and a door being forcibly opened. The first witness woke up as well, but, before either of them had left their room, the witness heard the sound of footsteps outside going in the direction of the water tap. The person screaming was calling out her husband, the first witness name.

The first witness went out of their room first before she followed.

When she exited their room, she saw the deceased behind the toilet door dressed only in her petticoat which was stuck to her body. The deceased had visible burns. She saw the accused by the door of the deceased's room.

She heard the deceased saying to the accused: “Dai wandipedza. Wabvira kundishungurudza, wandipisa” which words translated into English mean: “You should just have finished me. You have been persistent in harassing me. You set me on fire.”

She heard the accused to respond saying: “You set yourself on fire.”

She testified that the last witness ordered her to find something to cover the deceased with. She obliged and took one of the deceased's bed sheets and covered her with it.

The first witness, the deceased, and the accused then drove away in the first witness's vehicle.

When asked to recite the first words which she heard the deceased to say, she responded and said in Shona: “Maiwe ndofa” which was translated as: “Mother, I am dying!”

She said that she heard screaming and the door opening at the same time followed by footsteps which proceeded in the direction of the tap.

When the deceased was screaming, she was shouting: “Father of Brendon” in reference to the first witness.

When the witness came out of her room, she said that she saw the deceased talking to the accused person accusing him of having set her alight.

The witness remained at home when the deceased and the accused drove away from the scene.

Under cross examination, the witness agreed that she did not hear the deceased to say that someone was killing her. She said that she heard the deceased saying: “Mother, I am dying.”

The witness said that she did not know what had happened prior to this.

The witness reiterated that when she got out of the house, she heard the deceased saying to the accused: “You poured paraffin on me and burnt me.”

The witness said that she could not dispute that the accused assisted in dousing the deceased of the fire burning her because by the time she got to the scene, the deceased was behind the toilet door accusing the accused of pouring paraffin on her and setting her blaze.

The witness agreed that the accused disputed or denied the allegation.

The witness was not re-examined nor did the court seek any clarifications on her evidence.

The court, as with the last witness, was impressed by the demeanour of the witness. In fact, nothing eventful or new came out of the cross-examination of the witness. Her evidence was largely corroborative of that of the last witness.

Significantly, the accused's counsel, in cross examination, did not deny that the deceased made accusations pointing to the accused as having poured paraffin on her and set her light.

The witness evidence, that the deceased accused the accused of persistent harassment, and that the deceased said that you should have finished me, were not disputed either.

The court therefore accepted that the deceased uttered the words testified to by the witness.

The court also noted that the accused denied the accusations.

The last witness was Sekai Guvamatunhu, a police constable who was one of the duty officers at Chivhu Police Station when the deceased was brought to the police station by the first witness who made a report concerning the deceased having suffered burns.

The deceased was inside the first witness's car.

The witness proceeded to the vehicle, which was parked outside the charge office, and observed the deceased. She noted that the deceased had severe burns. She suggested that the deceased should be ferried to the hospital urgently.

When the witness tried to speak to the deceased, the accused came over to the witness to stop her from speaking to the witness giving the reason that the deceased had been burnt.

The witness accompanied the deceased to the hospital in the first witness's vehicle.

The witness evidence was not contentious, and, in any event, was relevant in respect of completing the chain of events. Nothing really turned on it. The court took and accepted the evidence as given.

The State closed its case....,.

The accused elected to give evidence.

He testified, on oath, that, the deceased was his wife of five (5) years. He denied killing her. On the fateful night, he said that he arrived at the deceased's room around 0100 hours, knocked at the door, and was let in. They greeted each other. He sat on a chair whilst the deceased returned to bed. He then told her that he wanted to speak to the deceased about rumours going around in town and being peddled by other people.

The deceased got out of bed and put on her skirt and blouse. She then pulled a chair and sat across the table from where he sat.

The accused said that he accosted the deceased of being in the habit of frequenting bars in his absence. He told the deceased that she had been seen by his brother's sons, called Kuda Muza and Chivizhe. He then chided her that her frequenting of bars was a source of embarrassment for him.

The deceased did not respond.

He said that the deceased suddenly got up and said that she would set herself on fire. She was working her way to the primus stove as she spoke. The accused had bought for her the primus stove to use in the event that there was no electricity supply. The deceased then poured paraffin on herself, let go of the stove, and got hold of matches.

He quickly grabbed both her hands to disable her from striking the matches. He then firmly gripped the hand which held the match box, took away the match-box and slipped it into his pocket.

He said that he asked the deceased as to why she wanted to set herself alight. The deceased did not respond, but returned to sit on the chair that she had risen from.

After the deceased sat down, he said that he asked her, again, as to why she wanted to set herself on fire and yet all that he was doing was to reprimand her; which was something that did not justify her to set herself on fire.

The deceased did not respond.

He said that he tried to telephone the deceased's sisters and aunt but their phones did not go through. He then sat in his chair for some time apprehensive that the deceased could do something like burning herself. He said that he dozed off because he suddenly heard the sound of a chair moving.

He saw the deceased take another match box.

This was about 30 minutes later after dozing off when he woke up to the sound of a moving chair. He stood up but the deceased lit the matches and set herself ablaze. She then directed the match box towards the accused's bossom. The deceased tried to light the matches in order to set the accused alight but it did not light up.

The accused said that he was surprised because he thought that the paraffin was no longer flammable.

The accused said that he thought about how he could put out the fire. He wore a nylon t/shirt and could not use it. There was a bed with blankets next to where the deceased was but he could not use the blankets because the deceased ran towards him and she appeared as if she wanted to grab him by the neck. She however held his arm in a firm grip as she screamed. He said that he suffered some abrasions. He then said:

“I realised that the fire intensity had increased and I said lets got to the tap so that I put out the fire. She went out first. I followed and said kneel down so that I pour water on you. I then ran some water over her.”

The accused said that Tawanda Miti, the first State witness, and his wife, woke up as he was by the water tap.

Tawanda Miti then said that something was burning and gave the accused a bucket with water telling him to put out the fire. The accused then noted that there were clothes burning on the floor and he stamped on the flames with his feet. He thereafter exited the deceased's room and found the deceased telling Tawanda Miti that he, the accused, had set her on fire.

The deceased was crying as she narrated her ordeal to Tawanda Miti.

The accused said that he then denied burning the deceased and the deceased kept quiet.

He said that the deceased only called out to Tawanda Miti when she was coming from the tap and not before.

When asked by his counsel to suggest any reason why the deceased would have accused him of setting her on fire, the accused responded: “I think it is because of the way I had spoken to her about her behaviour.”

Under cross examination, the accused admitted that he heard the deceased telling Tawanda Miti that the accused had burnt her. He however said that this was said after the fire had been extinguished. He also agreed that the deceased said: “why did you not also burn yourself and die too!” He said that she however was lying, and that, considering her state, he saw no useful purpose in denying.

He said that her utterances, pointing him out as her assailant, were intended to fix him.

The court sought clarifications, on whether the accused saw the place from where the deceased got the matches which the deceased used. He said that he suspected that the box must have been by the of corner table where the deceased sat. The two of them sat 1–2 metres apart. He said that the deceased was his second wife.

The above summarised evidence was, in the main, the accused's trail of events.

The court must decide whether, on the totality of the evidence, the State proved the charge against the accused beyond a reasonable doubt.

Firstly, commenting on the accused's demeanour, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife as per his testimony. The accused's demeanour was adjudged not to be impressive.

It is common cause that there was no independent witness to testify as to how the deceased ended up with the burns. The case falls to be determined on the basis of circumstantial evidence.

In this regard, the principles set out in the case of R v Blom 1939 AD 188 remain authoritative and continue to be followed in this jurisdiction.

In Zacharia Amons Simango v S SC42-14 and Abraham Mbovora v S SC75-14, the Supreme Court held the principles in R v Blom 1939 AD 188 to still hold good in this jurisdiction.

GOWORA JA, in Amons Simango v S SC42-14, stated that there are two cardinal rules which govern the use of circumstantial evidence in a criminal trial, being:

“(1) The inference sought to be drawn must be consistent with all the proven facts.

(2) The proved facts should be such that they exclude every possible inference from them save the one to be drawn.”

As regards the material facts as to what happened at the critical time, it is not disputed that the deceased suffered paraffin burns resulting from her being on fire.

The issue for determination is whether or not the deceased poured paraffin upon, and burnt herself, or it was the accused who sat her alight after pouring paraffin on her.

The State evidence, which was not disputed, was that the deceased pointed out to the accused as the perpetrator who poured paraffin on her and set her ablaze.

It is also not disputed that the accused, prior to the disputed incident with regards how it happened, had come to the deceased's place in the early hours of the morning. The accused accosted the deceased on allegations that the deceased was frequenting bars in his absence and of infidelity.

Such accusations involve matters of emotion; moreso on the part of the accuser who invariably requires answers and confessions.

If, as the accused alleged, the deceased chose to keep quiet and not deny the allegations, it is unlikely that the accused would have taken kindly to this.

The court reasoned, that, the discussion between the two could not have been an amicable one and the accused, in fact, was, in all probability, incensed because he allegedly had evidence of his relatives having informed him.

The accused sought to give the court the impression that he was simply engaged in a mutual and amicable discussion. The court reasoned, that, the interrogation of the deceased could not have been, and, in all probability, was not amicable.

The conduct of the accused had to be looked at within this background founded on probabilities.

The accused's evidence was that the deceased did not respond to the allegations which he made against her but chose to behave as described by the accused, that is: “she suddenly got up and said I will set myself on fire.”

Such reaction and conduct was, in the view of the court, illogical and improbable to a point that it can safely be said not to have happened.

In fact, what the accused seeks the court to accept was a scenario where the deceased was simply asked as to why she went to bars in the absence of the accused and she responded by pouring paraffin upon and setting herself alight.

When assessing evidence, it is trite that the accused's explanation or version of evidence should not be rejected for merely being improbable. It will be rejected only if it is so inherently improbable that it could not reasonably be said to be true: see Shusha v S [2011] ZASCA 1712.

In the reasoning of the court, it is inherently improbable that where parties are involved in a love or marriage relationship, and one party accuses the other party of improper behaviour and infidelity, the accused party does not answer the allegations, but, instead, suddenly adopts a dangerous manoeuvre to inflict harm or injury on themselves.

The inherent improbability in the accused narration of events would need to be considered together with other proven facts in drawing the appropriate inference.

The undisputed evidence of State witnesses was that the deceased named the accused as the person who had poured paraffin on her and set her ablaze.

The complainant was heard screaming and calling out to the neighbours. She did not call out to the accused person.

If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to, and in her presence, to assist her or come to her aid.

It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.

The accused, in his warned and cautioned statement, stated that he opened the door whilst the deceased was holding on to him in an embrace and crying - the accused does not appear to have suffered any injury to his person or damage to his clothing. He stated therein, at the time, that, when he opened the door, the fire was burning heavily.

He indicated therein, that, the deceased ran to the tap where she poured water on herself and that he followed and assisted her to extinguish the fire.

There was a variance with his evidence in chief because when he testified, he said that it was him who suggested to the deceased that they should go to the tap so that he extinguishes the fire. He further said that when he followed to the tap, he asked the deceased to kneel down so that he pours water on her.

The impression which one gets from the testimony is that the accused went all out to assist the deceased and even suggested how the fire could be extinguished.

He was, on his evidence, the savior.

It then becomes mind boggling that immediately following the accused's acts of benevolence towards the deceased, the deceased would immediately turn against her benefactor, after being assisted, and accuse him of burning her.

When a court assesses evidence, it does not treat each individual piece of evidence as an isolated component. Pieces of evidence constitute a mosaic of proof. Doubts in relation to one piece of evidence naturally arises if one picks and chooses to focus on individual evidential pieces. Doubts may be removed when all pieces of evidence are considered together taking into account probabilities.

Whilst the court critically interrogates and subjects each piece of evidence to examination, it is, in the final analysis, necessary to then consider the mosaic as a collective body of evidence. If evidence is not considered together, the court runs the risk of failing to pick the wood from the trees.

In R v Sibanda & Others 1965 (4) SA 241 (RA), BEADLE CJ…, stated, when dealing with circumstantial evidence, as follows;

“The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable ground for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

In S v Chabalala 2003 (1) SACR 134 (SCA)…, it is stated:

“…,. The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence, or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”

The upshot of the dicta in the above cases is that the court should always approach the assessment of evidence holistically and not nitpick aspects or components of evidence without relating them. It is the totality of the evidence which must be considered, and, a founding of guilt or innocence should not be based upon a consideration of facts treated in isolation but collectively.

In casu, the only factors indicative of the accused's innocence were his denial that it was not him who had committed the felony when the deceased pointed him out. He did not deny that the accusation against him was made.

There would appear to have been no logical reason for the deceased to have named the accused and attributed the pouring of paraffin and lighting of the deceased to the accused.

The reasoning of the court, in this regard, has been explained.

Had the deceased awoken to find herself on fire, she would, in all probability, have suspected the accused as he was the only person in the room. However, in casu, the events took place when the deceased was awake and there would, on the proven facts, have been no compelling reason for the deceased to attempt a suicide and attribute the act to the accused.

Counsel have raised the question of res gestae and argued that the evidential facts disqualify the application of the doctrine.

The defence counsel argued that there was no spontaneity in the deceased's exclamation pointing out to the accused as the assailant. For his part, the State counsel, in his closing submissions, indicated that he stood by his submissions in which he had earlier conceded to the defence application for discharge.

The court found the State's approach to be wholly unhelpful.

The State counsel did not even comment on the defence evidence and the probabilities.

It goes without saying, then, that the court does not agree with the veiled concession by the State that the State evidence was inadequate to support the charge.

The unfortunate attitude adopted by the State counsel appeared to be that of saying: “I have already made up my mind that the State has not proved a prima facie case. The court can proceed to make a contrary determination if it wishes.”

Such attitude and approach is improper.

Counsel needed to address the further evidence adduced after the dismissal of the application for discharge of the accused.

Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation that the cause of the fiasco was the accused.

To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach.

The deceased named the accused, at the first opportune time, after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.

The court has already dealt with the issue of the absence of the post-mortem report.

The issues in the case were not that the deceased could have met her death through other causes. The issue was whether the accused is the one who poured paraffin on the deceased and set her ablaze resulting in injuries from which the deceased died.

In such a case, a postmortem would simply be there to give credence to the admitted fact, and its absence is not therefore fatal to the State case.

Having considered all the evidence holistically, and, properly guided by case law on the approach to dealing with circumstantial evidence, the court determined that the only reasonable inference to be drawn on the evidence was that of the guilt of the accused.

The court determined, that, it was the accused who set the deceased ablaze after pouring paraffin on her, and, that, when he did so, he foresaw or realized a real risk or possibility that his conduct may cause death and continued in that conduct regardless.

The accused is therefore found guilty as charged under section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: that is, murder with constructive intent.

SENTENCE

Counsel addressed the court in mitigation and aggravation.

None of them made submissions in respect to whether or not the accused committed the murder in aggravating circumstances.

The court, following a conviction for murder, must make a determination as to whether or not the murder was committed in aggravating circumstances.

Such circumstances, without limitation of other factors which the court may take into account as constituting aggravating circumstances, are set out in section 47(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

None of the factors were present in this case and neither did the court consider that there were other factors present which could be classified as aggravating circumstances for purposes of applying the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act as aforesaid.

It is not necessary to cite extenso the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act and it suffices to incorporate them, by reference, they having been considered and found absent on the facts found proved.

The importance of making a finding on the presence or absence of aggravating circumstances following a conviction for murder is twofold:

(i) Firstly, it enables the court to properly exercise its discretion whether or not to impose the death sentence. The death sentence can only be imposed in the court's discretion in circumstances where a murder is committed in aggravating circumstances.

The provisions of section 337(1) of the Criminal Procedure and Evidence Act are instructive.

Where aggravating circumstances are not present, the death penalty cannot be imposed but imprisonment for life or “any sentence other than the death penalty.”

The “any other penalty” must be interpreted taking into account the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act which provides, that, where a murder is committed in the absence of aggravating circumstances, the court is obliged to impose a sentence of imprisonment for any “definite period.”

(ii) Secondly, the importance of the court making a finding on the presence or absence of aggravating circumstances arises from the fact that section 47(4)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the imposition of a minimum sentence of 20 years upon an offender convicted of murder committed in aggravating circumstances where the court, in the exercise of its discretion, is disinclined or not disposed to impose the death penalty.

The court enquired of both the State and defence counsels as to whether, by not addressing the issue of whether the murder was committed in aggravating circumstances, they were agreed that there were no aggravating circumstances as envisaged in section 47(2) of the Criminal Law (Codification and Reform) Act.

Counsel had apparently not been aware of the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act and had thus not addressed the court on the issue.

The court referred counsel to section 47(2) of the Criminal Law (Codification and Reform) Act, and, after going through its provisions, State counsel conceded that he could not advance any argument for a finding that the murder was committed in aggravating circumstances for the purposes of section 47(2) of the Criminal Law (Codification and Reform) Act aforesaid.

As already indicated, the concession coincided with the prima facie observation of the court on the absence of aggravating circumstances in the commission of the murder.

The court will therefore determine the appropriate sentence on the basis that it is at large, subject to the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act, to impose a sentence of imprisonment upon the accused of such length as it considers appropriate taking into account the objective circumstances surrounding the commission of the offence and balancing them with the accused's personal circumstances and the interests of society.

The interests of society require that the provisions of Chapter 4 (Declaration of Rights) of the Constitution should be upheld. Section 44 of the Constitution reads as follows;

44 Duty to respect fundamental human rights and freedoms

The State and every person, including juristic persons, and every institution and agency of the Government, at every level, must respect, protect, promote and fulfil the rights and freedoms set out in this chapter.”

The right to life is a fundamental human right and the court, as an agency of Government must give effect to section 44 of the Constitution when imposing sentence upon an offender convicted of murder or violating another's person's right to life as set out in section 48 of the Constitution.

Although this case was committed in 2011, before the promulgation of the present 2013 Constitution, nothing turns on this because the determining period, in terms of section 48 of the current Constitution, is the time of sentence.

Even if argument were to be raised to the contrary, and barring further arguments which could arise as a result of the savings and transitional provisions of the Constitution, in section 18 of the 6th Schedule, on the applicability of this Constitution to cases committed before the Constitution came into office, the position of the accused would not be any better, since, under the previous Constitution, not only was the right to life classified as a fundamental human right, but, legislation then in force made the imposition of a death penalty for murder mandatory in the absence of extenuating circumstances.

The above said, what is not debatable is that societal interests call upon the courts to impose sentences, in murder cases, which emphasize society's abhorrence for persons who commit murder.

Sentences imposed for murder must send a clear message to the accused, and would-be offenders, that the sanctity of human life should be held sacrosanct.

Whilst human rights are indivisible and interdependent, the right to life must rank as the mother of all human rights because without respecting and promoting it, society is decimated, and without society, there can be no human rights to enjoy, protect, promote, or fulfil.

The accused therefore committed a very serious offence in that it deprived society of one of its members.

It must go without argument, and as properly conceded by both counsel, that the offence committed by the accused is of serious proportions.

Despite the acceptance of the seriousness of the offence, and the finding that societal interests must take centre stage in sentencing an offender for the offence of murder, a court should not be retributive.

The remarks of HOLMES JA, in S v Rabie 1975 (4) SA 855, at 861-2, should always be embraced by every sentencer.

The learned judge reminded every sentencer of the importance of being fair to both the convict and society. He emphasised that justice included the element of mercy and that the latter was the hallmark of a civilised society and enlightened criminal justice system.

CORBETT JA, in the same judgment, at page 866, stated;

“A judicial officer should not approach punishment in a spirit of anger, because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal, and the interests of society which has task and the objects of punishment demand of him. Nor should he strive after severity, nor, on the other hand, surrender himself to misplaced pity.

Whilst not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.

It is in the context of this attitude of mind that l see mercy as an element in the determination of the appropriate punishment in the light of all the circumstances of the particular case.”

I must, at once, say that I defer to the dicta by the learned judgement as they commend themselves as pointedly very instructive and jurisprudentially beyond reproach.

The court will be guided accordingly.

Following on the court's embrace of the above approach, it must follow, as stated in S v Zinn 1969 (2) SA 537 (A), that, in assessing sentence, the court must have regard to the offender, the offence, and the interests of society in the imposition of an appropriate sentence.

So far as l stand informed of the court's approach to sentence in this jurisdiction, the approach in the quoted cases relate with the Zimbabwean approaches and indeed with sentencing trends in other jurisdictions where the court exercises a discretion on what sentence to impose for the specified offence.

The accused is a married and mature adult aged 56 years old. He would have been 49 years when the offence was committed. 49 years would still classify him as a mature adult.

He committed a crime of passion in that he suspected the deceased to be promiscuous and that she frequented bars.

At his age, the accused would have been expected to hold his emotions in check and not resorted to violence.

His behaviour betrayed his deemed maturity and expected measured approach to dealing with such problems. Society does not expect mature adults to lose their heads and act irrationally when resolving disputes.

The deceased suffered a lot of pain, as evidenced by the burn degrees which were assessed, initially at 35%, and then 76%.

The burns were so serious that the local district hospital at Chivhu could not treat them and referred the victim to Harare Central Hospital.

The burns were life-threatening, and, as the court found, it was not disputed, in evidence, that the victim died from the burn injuries as charged in the indictment.

The use of paraffin, and setting the deceased ablaze, was clearly an act of barbarism.

The purpose of burning something is to destroy it or change its state.

This is why the court ruled that the accused must have appreciated and did foresee the risk of serious injury or death resulting from the use of paraffin and setting the deceased ablaze.

Many a time, the courts have encouraged, in their judgments, that, domestic disputes should be solved amicably. This can be achieved, firstly, by embracing and respecting each other's rights to privacy and dignity and talking over problems instead of using the rod to instil discipline in the other spouse.

The use of violence by one spouse on another cannot be a panacea to fixing a problem or dispute. Dialogue should be the route to follow.

The behaviour of the accused did not only cost a life but has created animosities within the family of the deceased and his own; with the former now looking upon the accused as a murderer.

The death of a human being is not a small matter which can be brushed under the carpet.

The accused himself will forever live in regret carrying the stigma of a murderer. This is a form of punishment. It amounts to psychological torture that will eternally torment him for life.

In his submissions in mitigation, the defence counsel referred to several cases in this jurisdiction dealing with sentence for murder committed with constructive intent.

The cases predate the promulgation of the 2013 Constitution.

What was referred to then as constructive intent would, more or less, equate to what is envisaged in section 47(1)(b) as read with section 15 of the Criminal Law (Codification and Reform) Act which defines “realisation of a real risk or possibility” as an element of a crime and section 17 which sets out the test for the quoted phrase of the Criminal Law (Codification and Reform) Act.

Constructive intent, in a sense, is the antithesis or converse of actual intent, in that a person is said to have constructive intent where he committed an act in circumstances where he foresaw the risk or possibility of the end result as an eventuality and proceeded with his or her conduct regardless.

The cases which counsel cited, including S v Mukome 2008 (1) ZLR 314; S v Ncube SC149-04; S v Scluli HH146-04; S v Madzima SC70-01; and S v Moyo HB26-20, were all distinguishable on the facts from the case in casu.

In S v Shavi HB124-17, MAKONESE J emphasized that courts should not condone the use of violence as a means of resolving domestic disputes.

The accused, in that case, murdered his wife following a domestic dispute. The accused struck the deceased on the head several times as she lay on the bed. He fled the scene without rendering assistance. A sentence of 20 years imprisonment was imposed.

Other than adding the court's voice to that of MAKONESE J, for parties not to resort to violence in settling domestic disputes, the court is not persuaded to impose a similar sentence herein because the facts are different.

The accused, in casu, denied committing the offence and thus was not remorseful for his conduct.

The court was not placed in a position, because of the denial, to determine the proximate cause for the accused's reaction. This is not to say that the accused should have admitted committing the offence. It was his constitutional right to plead the denial and no adverse inference should be drawn from the denial.

The point made is that where the accused denies committing the offence charged, but the court convicts; it becomes difficult for the accused to turn around and adduce mitigating facts connected with the commission of the offence.

Equally, the court has no facts connected with the commission of the offence as would mitigate the accused's conduct in explaining the rationale for this conduct.

As regards individual deterrence, there was no evidence led to suggest that the accused is of a violent disposition.

He is a first offender.

There is, therefore, on his past, no evidence of propensity or disposition to commission of crimes.

As regards general deterrence, it has already been noted, that, the courts must shun and deprecate domestic violence. Sentences for crimes which arise from domestic violence must be severely punished as a mark of society's abhorrence for such crimes.

Engaging in love relationships and marriages should cease to be looked upon as an antecedent of domestic violence. The relationships should not be considered as a licence for couples to engage in acts of violence or abuse of each other or their families.

In the case of the accused, he and other like-minded people must understand that the exercise of marital power, to the extent that it may still exist in regard to other facets of life, does not extend to committing acts of violence over those over whom the accused and other like minded persons may consider they are entitled to exercise marital power over them.

A factor which weighs heavily in favour of the accused is the prima facie unreasonable delay in bringing this case to trial.

The defence counsel did not invoke the provisions of section 167A of the Criminal Procedure and Evidence Act for the court to enquire on the delay.

Be that as it may, the issue was raised in mitigation.

It was submitted, on the accused's behalf, that, from the time that the accused was arrested, on 23 October 2011, he availed himself to stand trial.

A delay of seven (7) years in bringing an arrested person to trial is prima facie unreasonable unless properly justified by the State.

Defence counsel submitted, that, on no less than three (3) previous occasions, the accused had been committed for trial with the trial being aborted for no fault of the accused.

The law provides for criminal trials to be held within a reasonable period, and, where there has been an unreasonable delay in the completion of the criminal proceedings, such factor should be considered as a mitigating factor in assessing sentence.

The State counsel did not deny that the delayed trial was not due to the conduct or fault of the accused. The fault was with the State whose house was not in order.

The delay in this matter is therefore a factor of weighty mitigation.

Another point requiring comment was the suggestion or submission by defence counsel that the accused be sentenced to a term of imprisonment with a portion thereof suspended.

Both sections 47(4)(b) of the Criminal Law (Codification and Reform) Act and section 337 of the Criminal Procedure and Evidence Act, which are the applicable sections informing sentence in this case, in view of the verdict reached, are clear that the death sentence aside, the accused must be sentenced to a definite term of imprisonment for the offence of murder.

Section 358 of the Criminal Procedure and Evidence Act is the one which empowers the court to suspend a portion of sentence imposed on an offender on appropriate conditions.

The power to suspend the whole, or a portion of a sentence, does not apply to 8th Schedule offences, and, murder, in regard to which the conviction in this case relates, is classified as an 8th Schedule offence.

Resultantly, counsel's prayer cannot be granted as it is not sanctioned by law.

In conclusion, general deterrence must be taken as the prime consideration taken together with other factors in this matter.

There is a clear unlikelihood that the accused will repeat the same offence. Individual deterrence is therefore not of much weight other than looked at from the retributive perspective that the accused should feel the pain of punishment for his transgression.

General deterrence should be the core value of society in matters of violence.

The interests of society will not be served by too harsh a sentence inasmuch as they will not be served by too lenient a sentence. A proper balance must be struck using the triad approach set out in S v Zinn 1969 (2) SA 537 (A).

Bearing in mind, and guided by the principle that each case should be decided on its own facts and circumstances, a sentence in the region of 18 years imprisonment would have been appropriate but for the delay in bringing the accused to trial.

The effect of the delay has been such as to persuade the court that a lesser sentence than the 18 years would meet the justice of the case. The following sentence is therefore imposed:

13 years imprisonment.

Direct, Concrete and Circumstantial Evidence, Key or Eye Witness, Inferential Reasoning, Evidence Aliunde and Res Gestae


The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused pleaded not guilty to the allegations, that, on 23 October, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her alight with the result that Modester Chikaka suffered severe burns all over her body which in turn led to her death on 26 October 2011.

The accused elected to give a Defence Outline in support of his plea of denial.

The upshot of his Defence Outline was to the effect that the deceased poured paraffin on herself and set herself alight and that he did not pour paraffin upon the deceased nor setting her alight. He outlined that he confronted the deceased in connection with her “suspected numerous extra marital affairs” since the deceased was his wife. He further outlined that the deceased in fact poured paraffin from a stove upon herself and “somehow” went ahead to and lit herself despite the accused's attempt to stop the deceased from doing so.

He stated that the deceased, after setting herself alight, tried to “embrace the accused person intending to cause harm to him but he managed to slip away going out of the room.”

He outlined that he assisted the deceased to “put off the fire by pouring some water on her at the water tape which was near the house.”

He also further “extinguished the fire which was burning inside the house in question.”

In manner of speaking, the accused's defence was simply, that, the deceased intentionally brought about her death, or committed suicide, by pouring paraffin upon and setting her body alight.

The State opened its case by tendering and producing, by consent of the accused, two affidavits sworn to, respectively, by doctors Ndekwere and Munhumeso.

The affidavit by Dr Ndekwere was produced as exhibit 1.

He examined the now deceased following her transfer from Chivhu Hospital to Harare Hospital on 23 October 2011 around 10:20 hours. He observed and commented that the deceased had suffered 76% open flame burns on her torso, lower, and upper limbs, as well as on the neck. The doctor recommended that the patient should be admitted in the Burns Ward at the hospital.

Exhibit 2 was also a medical affidavit prepared by Dr Munhumeso who examined the now deceased on 23 October 2011 around 0300 hours at Chivhu Hospital. He observed that the now deceased had sustained paraffin burns on the chest, abdomen, and both upper limbs. He stablilized the patient and caused the patient's transfer to Harare Central Hospital for further management after noting the seriousness of the burns which he assessed to be about 35% surface burns.

Another exhibit produced by consent was the accused's confirmed warned and cautioned statement as exhibit 3.

The statement was confirmed by the magistrate on 16 November 2011 following its recording on 2 November 2011.

The accused's statement was to the following effect, quoted verbatim:

“I have understood the caution, but I am denying the charges. On the day in question, I arrived at Modester Chikaka's house at around 0130hrs. She opened the door and I went inside the house and set on a chair. After greetings, I then told her that I wanted to discuss some stories, which were circulating in town, of her affairs with other men. I told her that I was not happy about that because it was embarrassing me.

After I had told my story, that is when Modester Chikaka woke up from the bed where she was sleeping and put on her skirt and blouse, sat on a chair on the other side of the table. She did not respond to any of the questions I put to her.

She got up from where she was seated and picked up a paraffin stove, which was next to the bed, opened it, and poured the paraffin on her clothes. She put the stove on the floor. I then stood up and went to where she was after I had noticed that she was looking for some matches. When I grabbed her, she was already having some matches in her hand. I got hold of her hands so that she could not lit the matches.

We struggled with each other in the house until I managed to take the matches from her.

She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding.

Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tap where she poured some water on her.

I followed her to the tap, helped her to extinguish the fire.

I then went into the house to extinguish fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time. I then boarded Cst Miti's car and went to the hospital. We further visited the police station where I was arrested and Modester Chikaka was taken to the hospital.”

It is important to note the following significant points and conclusions from the statement:

(i) The deceased had already retired to bed at the time that the accused arrived at the deceased's house around 0130 hours. The deceased opened the door, let the accused inside, and the latter sat on a chair.

(ii) The accused confronted the deceased to discuss rumours circulating in Chivhu town, that the deceased was having affairs with other men; such rumours being an embarrassment to the accused and over which he was unhappy.

(iii) The deceased did not respond to the accusations, but, instead, left the bed where she had gone back to sleep, put on her skirt and blouse and sat on a chair on the other side of the table from which the accused sat.

(iv) The deceased, without saying anything, stood up from the chair, picked up a paraffin stove which was next to the bed, opened it, and poured the paraffin on her clothes.

(v) The accused stood up from his chair after noticing that the deceased was looking for some matches. He managed to grab the deceased's hands which were holding some matches so that she would not light the matches. The accused and the deceased struggled with each other and the accused succeeded in taking away the matches from the deceased.

(vi) After the accused had dispossessed the deceased of the matches, the two returned to their sitting positions on the chairs which they had been sitting on before the struggle for possession of the matches.

(vii) For the next ten to fifteen minutes, the accused continued to interrogate the deceased in regard to the same rumours, that the deceased had boyfriends. The deceased did not respond to the accusations.

(viii) As the accused was still seated, the deceased got up from where she was seated, picked up another “matches” struck a match stick and lit herself before the accused could get close to where the deceased was.

(ix) The deceased, after setting herself ablaze, embraced the accused whilst she was screaming. The accused was able to open the door as the deceased was still in an embrace on him and she was crying.

(x) When the door was opened, the fire burned heavily. The deceased then ran to the tap where she poured water on herself. The accused followed and assisted the deceased to extinguish the fire.

(xi) The accused returned to the house, went inside, and extinguished the fire which was burning there. It was then that the deceased informed her neighbours that the accused had burnt her.

(xii) The accused did not dispute the accusation because to him it was a waste of time.

It was therefore clear, on the accused's account, as given to the police, that, the deceased and the accused were engaged in a disagreeable discussion when the tragedy took place.

The accused's explanation to the police was therefore simply, that, when he confronted the deceased about rumoured affairs which the deceased allegedly had with other men the deceased neither denied the accusation nor admitted them. Her response was to open the paraffin stove, pour paraffin upon herself, and attempting to burn herself before being disabled by the accused where after she sat back on the same chair that she had been seated on before her failed attempt to burn herself.

Another follow up interrogation of 10–15 minutes resulted in the deceased reaching for another box of matches and setting herself alight before embracing the accused whilst screaming.

The accused opened the door to the house/room whilst the deceased still held him in an embrace. The deceased then ran to the water tap and poured water on herself with the accused following and assisting her. The deceased reported that the accused had burnt her, an accusation which the accused did not contest because to do so would have been waste of time.

At this stage, it is necessary to note, that, the accused's confirmed statement, whose contents have been outlined, will, as provided in section 256(1) of the Criminal Procedure and Evidence Act, be taken as evidence against the accused, there being no challenge to its admissibility or authenticity.

Accordingly, the statement will be considered together with all other evidence adduced by the State in assessing the sufficiency of evidence led in support of the charge or allegations against the accused.

The State also led evidence from three witnesses, namely, Tawanda Miti, Nyasha Tsopotsa, and Sekai Guramatunhu. The summary of the evidence of these witnesses was as outlined hereunder:

Tawanda Miti

Is a police officer with CID and is based at Southerton Police Station, Harare. When the incident in this matter took place, he was stationed at Chivhu police station. He knew both the deceased and accused as lovers. The deceased and the witness shared the same residence where they lived in adjoining rooms sharing the same veranda. The residence was in the form of a standard block with partitioned rooms each room with its entrance door which was accessed from the veranda. When one is standing on the veranda, the doors to the rooms lead into the rooms from the veranda. The deceased occupied one room at the furthest end. The witness used the next two rooms after the deceased's room and the fourth room door led into the common washroom and toilet. Behind the toilet was a water tap.

There was no dispute as to the make-up of the residence and the rooms.

He testified that he had retired to bed with his wife when he woke up around 2:00am to screaming by a person calling out his name. He got out of bed, opened the door, and got out of his room. He then saw fire flames inside the deceased's room. He was shocked by the spectacle. He then saw the accused arriving on the veranda and he ordered the accused to put out the fire. He next observed the deceased coming from behind the residence in the direction where there was a water tap. He observed burns on the deceased.

He then heard the deceased to say to the accused: “why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased went on to tell the witness that the accused had poured paraffin on her and lit her up.

The deceased also said that the accused had the matches on him, to which the accused responded that the deceased had poured paraffin on herself.

The witness, at this stage, instructed his wife to cover the deceased with a blanket after where the witness provided his vehicle and ferried the deceased and accused to the police station where the accused was placed under arrest and the deceased ferried to hospital.

The State counsel asked the witness to repeat the exact words which the deceased reportedly uttered to the witness when the witness came out of his room to check on what was happening. The witness said:

“She said accused took paraffin from a paraffin stove and poured on her. He then took a matchstick, lit it, and threw it at me. She then went out of the house to pour water on myself whilst screaming.”

The witness further repeated, that, the deceased, when coming from the tap, said: “why did you not set yourself ablaze too since you wanted both of us to die? Why have you killed me?”

Asked whether the accused responded, the witness responded that the accused answered: “I did not kill you. You poured paraffin on yourself.”

The witness said that the accused proceeded to extinguish the fire in the house after coming on to the veranda from the direction of the tap as per the witness assumption.

Under cross-examination, the witness admitted that he did not know for a fact as to who poured paraffin on the deceased. He also did not witness the accused setting the deceased on fire.

The witness was asked: “You did not hear her calling out that accused had set her ablaze whilst you were in your room?” and he responded; “She was saying that. She said so as she called out for my help.”

The witness agreed that in his witness statement, recorded on 3 November 2011, he did not mention that the deceased had shouted that the accused had set her ablaze.

The witness said that the omission could have been a result of oversight.

The witness agreed that he could not deny that the accused assisted the deceased to douse off the flames at the tap.

The witness agreed that the accused denied that he had set the deceased ablaze when the deceased was making the accusation.

He agreed that the accused had responded that the deceased poured paraffin on herself.

The witness said that prior to hearing the screaming which woke him up, he did not hear any commotion whilst he was asleep.

He said that the accused was searched at the charge office and found to be having a box of matches in his pocket. The witness agreed that in his recorded statement he stated that the accused explained his possession of the matches by saying that he took the box of matches from the deceased.

The court's assessment of the evidence of this witness was that he was an honest and impressive witness who gave a simple narration of the events which he witnessed. The cross examination of the witness was not eventful because he maintained his story.

His evidence was clear, that, the deceased accused the accused person of pouring paraffin upon her and setting her ablaze with matches. His evidence was equally clear that the accused responded to the allegation by denying the accusation and instead accusing the deceased of having poured paraffin on herself and set herself ablaze.

It was not suggested to the witness that the deceased did not name the person who had harmed her. What was put to the witness in cross-examination was that the accused denied the allegation.

It was not denied that the deceased went further to ask the accused as to why he had not equally poured paraffin upon himself so that he dies together with the deceased as he had wished or declared.

It was not denied that the deceased uttered the words: “why have you killed me?”

The court, having been impressed by the demeanour of the witness, his self-confidence, and standing unshaken under cross-examination, accepted the evidence of the witness as reliable.

The next witness was Nyasha Tsopotsa, the wife of the last witness.

She testified to having been asleep with the last witness when she heard screaming sounds and a door being forcibly opened. The first witness woke up as well, but, before either of them had left their room, the witness heard the sound of footsteps outside going in the direction of the water tap. The person screaming was calling out her husband, the first witness name.

The first witness went out of their room first before she followed.

When she exited their room, she saw the deceased behind the toilet door dressed only in her petticoat which was stuck to her body. The deceased had visible burns. She saw the accused by the door of the deceased's room.

She heard the deceased saying to the accused: “Dai wandipedza. Wabvira kundishungurudza, wandipisa” which words translated into English mean: “You should just have finished me. You have been persistent in harassing me. You set me on fire.”

She heard the accused to respond saying: “You set yourself on fire.”

She testified that the last witness ordered her to find something to cover the deceased with. She obliged and took one of the deceased's bed sheets and covered her with it.

The first witness, the deceased, and the accused then drove away in the first witness's vehicle.

When asked to recite the first words which she heard the deceased to say, she responded and said in Shona: “Maiwe ndofa” which was translated as: “Mother, I am dying!”

She said that she heard screaming and the door opening at the same time followed by footsteps which proceeded in the direction of the tap.

When the deceased was screaming, she was shouting: “Father of Brendon” in reference to the first witness.

When the witness came out of her room, she said that she saw the deceased talking to the accused person accusing him of having set her alight.

The witness remained at home when the deceased and the accused drove away from the scene.

Under cross examination, the witness agreed that she did not hear the deceased to say that someone was killing her. She said that she heard the deceased saying: “Mother, I am dying.”

The witness said that she did not know what had happened prior to this.

The witness reiterated that when she got out of the house, she heard the deceased saying to the accused: “You poured paraffin on me and burnt me.”

The witness said that she could not dispute that the accused assisted in dousing the deceased of the fire burning her because by the time she got to the scene, the deceased was behind the toilet door accusing the accused of pouring paraffin on her and setting her blaze.

The witness agreed that the accused disputed or denied the allegation.

The witness was not re-examined nor did the court seek any clarifications on her evidence.

The court, as with the last witness, was impressed by the demeanour of the witness. In fact, nothing eventful or new came out of the cross-examination of the witness. Her evidence was largely corroborative of that of the last witness.

Significantly, the accused's counsel, in cross examination, did not deny that the deceased made accusations pointing to the accused as having poured paraffin on her and set her light.

The witness evidence, that the deceased accused the accused of persistent harassment, and that the deceased said that you should have finished me, were not disputed either.

The court therefore accepted that the deceased uttered the words testified to by the witness.

The court also noted that the accused denied the accusations.

The last witness was Sekai Guvamatunhu, a police constable who was one of the duty officers at Chivhu Police Station when the deceased was brought to the police station by the first witness who made a report concerning the deceased having suffered burns.

The deceased was inside the first witness's car.

The witness proceeded to the vehicle, which was parked outside the charge office, and observed the deceased. She noted that the deceased had severe burns. She suggested that the deceased should be ferried to the hospital urgently.

When the witness tried to speak to the deceased, the accused came over to the witness to stop her from speaking to the witness giving the reason that the deceased had been burnt.

The witness accompanied the deceased to the hospital in the first witness's vehicle.

The witness evidence was not contentious, and, in any event, was relevant in respect of completing the chain of events. Nothing really turned on it. The court took and accepted the evidence as given.

The State closed its case....,.

The accused elected to give evidence.

He testified, on oath, that, the deceased was his wife of five (5) years. He denied killing her. On the fateful night, he said that he arrived at the deceased's room around 0100 hours, knocked at the door, and was let in. They greeted each other. He sat on a chair whilst the deceased returned to bed. He then told her that he wanted to speak to the deceased about rumours going around in town and being peddled by other people.

The deceased got out of bed and put on her skirt and blouse. She then pulled a chair and sat across the table from where he sat.

The accused said that he accosted the deceased of being in the habit of frequenting bars in his absence. He told the deceased that she had been seen by his brother's sons, called Kuda Muza and Chivizhe. He then chided her that her frequenting of bars was a source of embarrassment for him.

The deceased did not respond.

He said that the deceased suddenly got up and said that she would set herself on fire. She was working her way to the primus stove as she spoke. The accused had bought for her the primus stove to use in the event that there was no electricity supply. The deceased then poured paraffin on herself, let go of the stove, and got hold of matches.

He quickly grabbed both her hands to disable her from striking the matches. He then firmly gripped the hand which held the match box, took away the match-box and slipped it into his pocket.

He said that he asked the deceased as to why she wanted to set herself alight. The deceased did not respond, but returned to sit on the chair that she had risen from.

After the deceased sat down, he said that he asked her, again, as to why she wanted to set herself on fire and yet all that he was doing was to reprimand her; which was something that did not justify her to set herself on fire.

The deceased did not respond.

He said that he tried to telephone the deceased's sisters and aunt but their phones did not go through. He then sat in his chair for some time apprehensive that the deceased could do something like burning herself. He said that he dozed off because he suddenly heard the sound of a chair moving.

He saw the deceased take another match box.

This was about 30 minutes later after dozing off when he woke up to the sound of a moving chair. He stood up but the deceased lit the matches and set herself ablaze. She then directed the match box towards the accused's bossom. The deceased tried to light the matches in order to set the accused alight but it did not light up.

The accused said that he was surprised because he thought that the paraffin was no longer flammable.

The accused said that he thought about how he could put out the fire. He wore a nylon t/shirt and could not use it. There was a bed with blankets next to where the deceased was but he could not use the blankets because the deceased ran towards him and she appeared as if she wanted to grab him by the neck. She however held his arm in a firm grip as she screamed. He said that he suffered some abrasions. He then said:

“I realised that the fire intensity had increased and I said lets got to the tap so that I put out the fire. She went out first. I followed and said kneel down so that I pour water on you. I then ran some water over her.”

The accused said that Tawanda Miti, the first State witness, and his wife, woke up as he was by the water tap.

Tawanda Miti then said that something was burning and gave the accused a bucket with water telling him to put out the fire. The accused then noted that there were clothes burning on the floor and he stamped on the flames with his feet. He thereafter exited the deceased's room and found the deceased telling Tawanda Miti that he, the accused, had set her on fire.

The deceased was crying as she narrated her ordeal to Tawanda Miti.

The accused said that he then denied burning the deceased and the deceased kept quiet.

He said that the deceased only called out to Tawanda Miti when she was coming from the tap and not before.

When asked by his counsel to suggest any reason why the deceased would have accused him of setting her on fire, the accused responded: “I think it is because of the way I had spoken to her about her behaviour.”

Under cross examination, the accused admitted that he heard the deceased telling Tawanda Miti that the accused had burnt her. He however said that this was said after the fire had been extinguished. He also agreed that the deceased said: “why did you not also burn yourself and die too!” He said that she however was lying, and that, considering her state, he saw no useful purpose in denying.

He said that her utterances, pointing him out as her assailant, were intended to fix him.

The court sought clarifications, on whether the accused saw the place from where the deceased got the matches which the deceased used. He said that he suspected that the box must have been by the of corner table where the deceased sat. The two of them sat 1–2 metres apart. He said that the deceased was his second wife.

The above summarised evidence was, in the main, the accused's trail of events.

The court must decide whether, on the totality of the evidence, the State proved the charge against the accused beyond a reasonable doubt.

Firstly, commenting on the accused's demeanour, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife as per his testimony. The accused's demeanour was adjudged not to be impressive.

It is common cause that there was no independent witness to testify as to how the deceased ended up with the burns. The case falls to be determined on the basis of circumstantial evidence.

In this regard, the principles set out in the case of R v Blom 1939 AD 188 remain authoritative and continue to be followed in this jurisdiction.

In Zacharia Amons Simango v S SC42-14 and Abraham Mbovora v S SC75-14, the Supreme Court held the principles in R v Blom 1939 AD 188 to still hold good in this jurisdiction.

GOWORA JA, in Amons Simango v S SC42-14, stated that there are two cardinal rules which govern the use of circumstantial evidence in a criminal trial, being:

“(1) The inference sought to be drawn must be consistent with all the proven facts.

(2) The proved facts should be such that they exclude every possible inference from them save the one to be drawn.”

As regards the material facts as to what happened at the critical time, it is not disputed that the deceased suffered paraffin burns resulting from her being on fire.

The issue for determination is whether or not the deceased poured paraffin upon, and burnt herself, or it was the accused who sat her alight after pouring paraffin on her.

The State evidence, which was not disputed, was that the deceased pointed out to the accused as the perpetrator who poured paraffin on her and set her ablaze.

It is also not disputed that the accused, prior to the disputed incident with regards how it happened, had come to the deceased's place in the early hours of the morning. The accused accosted the deceased on allegations that the deceased was frequenting bars in his absence and of infidelity.

Such accusations involve matters of emotion; moreso on the part of the accuser who invariably requires answers and confessions.

If, as the accused alleged, the deceased chose to keep quiet and not deny the allegations, it is unlikely that the accused would have taken kindly to this.

The court reasoned, that, the discussion between the two could not have been an amicable one and the accused, in fact, was, in all probability, incensed because he allegedly had evidence of his relatives having informed him.

The accused sought to give the court the impression that he was simply engaged in a mutual and amicable discussion. The court reasoned, that, the interrogation of the deceased could not have been, and, in all probability, was not amicable.

The conduct of the accused had to be looked at within this background founded on probabilities.

The accused's evidence was that the deceased did not respond to the allegations which he made against her but chose to behave as described by the accused, that is: “she suddenly got up and said I will set myself on fire.”

Such reaction and conduct was, in the view of the court, illogical and improbable to a point that it can safely be said not to have happened.

In fact, what the accused seeks the court to accept was a scenario where the deceased was simply asked as to why she went to bars in the absence of the accused and she responded by pouring paraffin upon and setting herself alight.

When assessing evidence, it is trite that the accused's explanation or version of evidence should not be rejected for merely being improbable. It will be rejected only if it is so inherently improbable that it could not reasonably be said to be true: see Shusha v S [2011] ZASCA 1712.

In the reasoning of the court, it is inherently improbable that where parties are involved in a love or marriage relationship, and one party accuses the other party of improper behaviour and infidelity, the accused party does not answer the allegations, but, instead, suddenly adopts a dangerous manoeuvre to inflict harm or injury on themselves.

The inherent improbability in the accused narration of events would need to be considered together with other proven facts in drawing the appropriate inference.

The undisputed evidence of State witnesses was that the deceased named the accused as the person who had poured paraffin on her and set her ablaze.

The complainant was heard screaming and calling out to the neighbours. She did not call out to the accused person.

If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to, and in her presence, to assist her or come to her aid.

It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.

The accused, in his warned and cautioned statement, stated that he opened the door whilst the deceased was holding on to him in an embrace and crying - the accused does not appear to have suffered any injury to his person or damage to his clothing. He stated therein, at the time, that, when he opened the door, the fire was burning heavily.

He indicated therein, that, the deceased ran to the tap where she poured water on herself and that he followed and assisted her to extinguish the fire.

There was a variance with his evidence in chief because when he testified, he said that it was him who suggested to the deceased that they should go to the tap so that he extinguishes the fire. He further said that when he followed to the tap, he asked the deceased to kneel down so that he pours water on her.

The impression which one gets from the testimony is that the accused went all out to assist the deceased and even suggested how the fire could be extinguished.

He was, on his evidence, the savior.

It then becomes mind boggling that immediately following the accused's acts of benevolence towards the deceased, the deceased would immediately turn against her benefactor, after being assisted, and accuse him of burning her.

When a court assesses evidence, it does not treat each individual piece of evidence as an isolated component. Pieces of evidence constitute a mosaic of proof. Doubts in relation to one piece of evidence naturally arises if one picks and chooses to focus on individual evidential pieces. Doubts may be removed when all pieces of evidence are considered together taking into account probabilities.

Whilst the court critically interrogates and subjects each piece of evidence to examination, it is, in the final analysis, necessary to then consider the mosaic as a collective body of evidence. If evidence is not considered together, the court runs the risk of failing to pick the wood from the trees.

In R v Sibanda & Others 1965 (4) SA 241 (RA), BEADLE CJ…, stated, when dealing with circumstantial evidence, as follows;

“The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable ground for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

In S v Chabalala 2003 (1) SACR 134 (SCA)…, it is stated:

“…,. The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence, or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”

The upshot of the dicta in the above cases is that the court should always approach the assessment of evidence holistically and not nitpick aspects or components of evidence without relating them. It is the totality of the evidence which must be considered, and, a founding of guilt or innocence should not be based upon a consideration of facts treated in isolation but collectively.

In casu, the only factors indicative of the accused's innocence were his denial that it was not him who had committed the felony when the deceased pointed him out. He did not deny that the accusation against him was made.

There would appear to have been no logical reason for the deceased to have named the accused and attributed the pouring of paraffin and lighting of the deceased to the accused.

The reasoning of the court, in this regard, has been explained.

Had the deceased awoken to find herself on fire, she would, in all probability, have suspected the accused as he was the only person in the room. However, in casu, the events took place when the deceased was awake and there would, on the proven facts, have been no compelling reason for the deceased to attempt a suicide and attribute the act to the accused.

Counsel have raised the question of res gestae and argued that the evidential facts disqualify the application of the doctrine.

The defence counsel argued that there was no spontaneity in the deceased's exclamation pointing out to the accused as the assailant. For his part, the State counsel, in his closing submissions, indicated that he stood by his submissions in which he had earlier conceded to the defence application for discharge.

The court found the State's approach to be wholly unhelpful.

The State counsel did not even comment on the defence evidence and the probabilities.

It goes without saying, then, that the court does not agree with the veiled concession by the State that the State evidence was inadequate to support the charge.

The unfortunate attitude adopted by the State counsel appeared to be that of saying: “I have already made up my mind that the State has not proved a prima facie case. The court can proceed to make a contrary determination if it wishes.”

Such attitude and approach is improper.

Counsel needed to address the further evidence adduced after the dismissal of the application for discharge of the accused.

Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation that the cause of the fiasco was the accused.

To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach.

The deceased named the accused, at the first opportune time, after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.

The court has already dealt with the issue of the absence of the post-mortem report.

The issues in the case were not that the deceased could have met her death through other causes. The issue was whether the accused is the one who poured paraffin on the deceased and set her ablaze resulting in injuries from which the deceased died.

In such a case, a postmortem would simply be there to give credence to the admitted fact, and its absence is not therefore fatal to the State case.

Having considered all the evidence holistically, and, properly guided by case law on the approach to dealing with circumstantial evidence, the court determined that the only reasonable inference to be drawn on the evidence was that of the guilt of the accused.

The court determined, that, it was the accused who set the deceased ablaze after pouring paraffin on her, and, that, when he did so, he foresaw or realized a real risk or possibility that his conduct may cause death and continued in that conduct regardless.

The accused is therefore found guilty as charged under section 47(1)(b) of the Criminal Law (Codification & Reform) Act [Chapter 9:23]: that is, murder with constructive intent.

Hearsay Evidence, Res Gestae and Informants Not Presenting Corroborative Oral Evidence or Statements on Oath


The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused pleaded not guilty to the allegations, that, on 23 October, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her alight with the result that Modester Chikaka suffered severe burns all over her body which in turn led to her death on 26 October 2011.

The accused elected to give a Defence Outline in support of his plea of denial.

The upshot of his Defence Outline was to the effect that the deceased poured paraffin on herself and set herself alight and that he did not pour paraffin upon the deceased nor setting her alight. He outlined that he confronted the deceased in connection with her “suspected numerous extra marital affairs” since the deceased was his wife. He further outlined that the deceased in fact poured paraffin from a stove upon herself and “somehow” went ahead to and lit herself despite the accused's attempt to stop the deceased from doing so.

He stated that the deceased, after setting herself alight, tried to “embrace the accused person intending to cause harm to him but he managed to slip away going out of the room.”

He outlined that he assisted the deceased to “put off the fire by pouring some water on her at the water tape which was near the house.”

He also further “extinguished the fire which was burning inside the house in question.”

In manner of speaking, the accused's defence was simply, that, the deceased intentionally brought about her death, or committed suicide, by pouring paraffin upon and setting her body alight.

The State opened its case by tendering and producing, by consent of the accused, two affidavits sworn to, respectively, by doctors Ndekwere and Munhumeso.

The affidavit by Dr Ndekwere was produced as exhibit 1.

He examined the now deceased following her transfer from Chivhu Hospital to Harare Hospital on 23 October 2011 around 10:20 hours. He observed and commented that the deceased had suffered 76% open flame burns on her torso, lower, and upper limbs, as well as on the neck. The doctor recommended that the patient should be admitted in the Burns Ward at the hospital.

Exhibit 2 was also a medical affidavit prepared by Dr Munhumeso who examined the now deceased on 23 October 2011 around 0300 hours at Chivhu Hospital. He observed that the now deceased had sustained paraffin burns on the chest, abdomen, and both upper limbs. He stablilized the patient and caused the patient's transfer to Harare Central Hospital for further management after noting the seriousness of the burns which he assessed to be about 35% surface burns.

Another exhibit produced by consent was the accused's confirmed warned and cautioned statement as exhibit 3.

The statement was confirmed by the magistrate on 16 November 2011 following its recording on 2 November 2011.

The accused's statement was to the following effect, quoted verbatim:

“I have understood the caution, but I am denying the charges. On the day in question, I arrived at Modester Chikaka's house at around 0130hrs. She opened the door and I went inside the house and set on a chair. After greetings, I then told her that I wanted to discuss some stories, which were circulating in town, of her affairs with other men. I told her that I was not happy about that because it was embarrassing me.

After I had told my story, that is when Modester Chikaka woke up from the bed where she was sleeping and put on her skirt and blouse, sat on a chair on the other side of the table. She did not respond to any of the questions I put to her.

She got up from where she was seated and picked up a paraffin stove, which was next to the bed, opened it, and poured the paraffin on her clothes. She put the stove on the floor. I then stood up and went to where she was after I had noticed that she was looking for some matches. When I grabbed her, she was already having some matches in her hand. I got hold of her hands so that she could not lit the matches.

We struggled with each other in the house until I managed to take the matches from her.

She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding.

Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tap where she poured some water on her.

I followed her to the tap, helped her to extinguish the fire.

I then went into the house to extinguish fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time. I then boarded Cst Miti's car and went to the hospital. We further visited the police station where I was arrested and Modester Chikaka was taken to the hospital.”

It is important to note the following significant points and conclusions from the statement:

(i) The deceased had already retired to bed at the time that the accused arrived at the deceased's house around 0130 hours. The deceased opened the door, let the accused inside, and the latter sat on a chair.

(ii) The accused confronted the deceased to discuss rumours circulating in Chivhu town, that the deceased was having affairs with other men; such rumours being an embarrassment to the accused and over which he was unhappy.

(iii) The deceased did not respond to the accusations, but, instead, left the bed where she had gone back to sleep, put on her skirt and blouse and sat on a chair on the other side of the table from which the accused sat.

(iv) The deceased, without saying anything, stood up from the chair, picked up a paraffin stove which was next to the bed, opened it, and poured the paraffin on her clothes.

(v) The accused stood up from his chair after noticing that the deceased was looking for some matches. He managed to grab the deceased's hands which were holding some matches so that she would not light the matches. The accused and the deceased struggled with each other and the accused succeeded in taking away the matches from the deceased.

(vi) After the accused had dispossessed the deceased of the matches, the two returned to their sitting positions on the chairs which they had been sitting on before the struggle for possession of the matches.

(vii) For the next ten to fifteen minutes, the accused continued to interrogate the deceased in regard to the same rumours, that the deceased had boyfriends. The deceased did not respond to the accusations.

(viii) As the accused was still seated, the deceased got up from where she was seated, picked up another “matches” struck a match stick and lit herself before the accused could get close to where the deceased was.

(ix) The deceased, after setting herself ablaze, embraced the accused whilst she was screaming. The accused was able to open the door as the deceased was still in an embrace on him and she was crying.

(x) When the door was opened, the fire burned heavily. The deceased then ran to the tap where she poured water on herself. The accused followed and assisted the deceased to extinguish the fire.

(xi) The accused returned to the house, went inside, and extinguished the fire which was burning there. It was then that the deceased informed her neighbours that the accused had burnt her.

(xii) The accused did not dispute the accusation because to him it was a waste of time.

It was therefore clear, on the accused's account, as given to the police, that, the deceased and the accused were engaged in a disagreeable discussion when the tragedy took place.

The accused's explanation to the police was therefore simply, that, when he confronted the deceased about rumoured affairs which the deceased allegedly had with other men the deceased neither denied the accusation nor admitted them. Her response was to open the paraffin stove, pour paraffin upon herself, and attempting to burn herself before being disabled by the accused where after she sat back on the same chair that she had been seated on before her failed attempt to burn herself.

Another follow up interrogation of 10–15 minutes resulted in the deceased reaching for another box of matches and setting herself alight before embracing the accused whilst screaming.

The accused opened the door to the house/room whilst the deceased still held him in an embrace. The deceased then ran to the water tap and poured water on herself with the accused following and assisting her. The deceased reported that the accused had burnt her, an accusation which the accused did not contest because to do so would have been waste of time.

At this stage, it is necessary to note, that, the accused's confirmed statement, whose contents have been outlined, will, as provided in section 256(1) of the Criminal Procedure and Evidence Act, be taken as evidence against the accused, there being no challenge to its admissibility or authenticity.

Accordingly, the statement will be considered together with all other evidence adduced by the State in assessing the sufficiency of evidence led in support of the charge or allegations against the accused.

The State also led evidence from three witnesses, namely, Tawanda Miti, Nyasha Tsopotsa, and Sekai Guramatunhu. The summary of the evidence of these witnesses was as outlined hereunder:

Tawanda Miti

Is a police officer with CID and is based at Southerton Police Station, Harare. When the incident in this matter took place, he was stationed at Chivhu police station. He knew both the deceased and accused as lovers. The deceased and the witness shared the same residence where they lived in adjoining rooms sharing the same veranda. The residence was in the form of a standard block with partitioned rooms each room with its entrance door which was accessed from the veranda. When one is standing on the veranda, the doors to the rooms lead into the rooms from the veranda. The deceased occupied one room at the furthest end. The witness used the next two rooms after the deceased's room and the fourth room door led into the common washroom and toilet. Behind the toilet was a water tap.

There was no dispute as to the make-up of the residence and the rooms.

He testified that he had retired to bed with his wife when he woke up around 2:00am to screaming by a person calling out his name. He got out of bed, opened the door, and got out of his room. He then saw fire flames inside the deceased's room. He was shocked by the spectacle. He then saw the accused arriving on the veranda and he ordered the accused to put out the fire. He next observed the deceased coming from behind the residence in the direction where there was a water tap. He observed burns on the deceased.

He then heard the deceased to say to the accused: “why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased went on to tell the witness that the accused had poured paraffin on her and lit her up.

The deceased also said that the accused had the matches on him, to which the accused responded that the deceased had poured paraffin on herself.

The witness, at this stage, instructed his wife to cover the deceased with a blanket after where the witness provided his vehicle and ferried the deceased and accused to the police station where the accused was placed under arrest and the deceased ferried to hospital.

The State counsel asked the witness to repeat the exact words which the deceased reportedly uttered to the witness when the witness came out of his room to check on what was happening. The witness said:

“She said accused took paraffin from a paraffin stove and poured on her. He then took a matchstick, lit it, and threw it at me. She then went out of the house to pour water on myself whilst screaming.”

The witness further repeated, that, the deceased, when coming from the tap, said: “why did you not set yourself ablaze too since you wanted both of us to die? Why have you killed me?”

Asked whether the accused responded, the witness responded that the accused answered: “I did not kill you. You poured paraffin on yourself.”

The witness said that the accused proceeded to extinguish the fire in the house after coming on to the veranda from the direction of the tap as per the witness assumption.

Under cross-examination, the witness admitted that he did not know for a fact as to who poured paraffin on the deceased. He also did not witness the accused setting the deceased on fire.

The witness was asked: “You did not hear her calling out that accused had set her ablaze whilst you were in your room?” and he responded; “She was saying that. She said so as she called out for my help.”

The witness agreed that in his witness statement, recorded on 3 November 2011, he did not mention that the deceased had shouted that the accused had set her ablaze.

The witness said that the omission could have been a result of oversight.

The witness agreed that he could not deny that the accused assisted the deceased to douse off the flames at the tap.

The witness agreed that the accused denied that he had set the deceased ablaze when the deceased was making the accusation.

He agreed that the accused had responded that the deceased poured paraffin on herself.

The witness said that prior to hearing the screaming which woke him up, he did not hear any commotion whilst he was asleep.

He said that the accused was searched at the charge office and found to be having a box of matches in his pocket. The witness agreed that in his recorded statement he stated that the accused explained his possession of the matches by saying that he took the box of matches from the deceased.

The court's assessment of the evidence of this witness was that he was an honest and impressive witness who gave a simple narration of the events which he witnessed. The cross examination of the witness was not eventful because he maintained his story.

His evidence was clear, that, the deceased accused the accused person of pouring paraffin upon her and setting her ablaze with matches. His evidence was equally clear that the accused responded to the allegation by denying the accusation and instead accusing the deceased of having poured paraffin on herself and set herself ablaze.

It was not suggested to the witness that the deceased did not name the person who had harmed her. What was put to the witness in cross-examination was that the accused denied the allegation.

It was not denied that the deceased went further to ask the accused as to why he had not equally poured paraffin upon himself so that he dies together with the deceased as he had wished or declared.

It was not denied that the deceased uttered the words: “why have you killed me?”

The court, having been impressed by the demeanour of the witness, his self-confidence, and standing unshaken under cross-examination, accepted the evidence of the witness as reliable.

The next witness was Nyasha Tsopotsa, the wife of the last witness.

She testified to having been asleep with the last witness when she heard screaming sounds and a door being forcibly opened. The first witness woke up as well, but, before either of them had left their room, the witness heard the sound of footsteps outside going in the direction of the water tap. The person screaming was calling out her husband, the first witness name.

The first witness went out of their room first before she followed.

When she exited their room, she saw the deceased behind the toilet door dressed only in her petticoat which was stuck to her body. The deceased had visible burns. She saw the accused by the door of the deceased's room.

She heard the deceased saying to the accused: “Dai wandipedza. Wabvira kundishungurudza, wandipisa” which words translated into English mean: “You should just have finished me. You have been persistent in harassing me. You set me on fire.”

She heard the accused to respond saying: “You set yourself on fire.”

She testified that the last witness ordered her to find something to cover the deceased with. She obliged and took one of the deceased's bed sheets and covered her with it.

The first witness, the deceased, and the accused then drove away in the first witness's vehicle.

When asked to recite the first words which she heard the deceased to say, she responded and said in Shona: “Maiwe ndofa” which was translated as: “Mother, I am dying!”

She said that she heard screaming and the door opening at the same time followed by footsteps which proceeded in the direction of the tap.

When the deceased was screaming, she was shouting: “Father of Brendon” in reference to the first witness.

When the witness came out of her room, she said that she saw the deceased talking to the accused person accusing him of having set her alight.

The witness remained at home when the deceased and the accused drove away from the scene.

Under cross examination, the witness agreed that she did not hear the deceased to say that someone was killing her. She said that she heard the deceased saying: “Mother, I am dying.”

The witness said that she did not know what had happened prior to this.

The witness reiterated that when she got out of the house, she heard the deceased saying to the accused: “You poured paraffin on me and burnt me.”

The witness said that she could not dispute that the accused assisted in dousing the deceased of the fire burning her because by the time she got to the scene, the deceased was behind the toilet door accusing the accused of pouring paraffin on her and setting her blaze.

The witness agreed that the accused disputed or denied the allegation.

The witness was not re-examined nor did the court seek any clarifications on her evidence.

The court, as with the last witness, was impressed by the demeanour of the witness. In fact, nothing eventful or new came out of the cross-examination of the witness. Her evidence was largely corroborative of that of the last witness.

Significantly, the accused's counsel, in cross examination, did not deny that the deceased made accusations pointing to the accused as having poured paraffin on her and set her light.

The witness evidence, that the deceased accused the accused of persistent harassment, and that the deceased said that you should have finished me, were not disputed either.

The court therefore accepted that the deceased uttered the words testified to by the witness.

The court also noted that the accused denied the accusations.

The last witness was Sekai Guvamatunhu, a police constable who was one of the duty officers at Chivhu Police Station when the deceased was brought to the police station by the first witness who made a report concerning the deceased having suffered burns.

The deceased was inside the first witness's car.

The witness proceeded to the vehicle, which was parked outside the charge office, and observed the deceased. She noted that the deceased had severe burns. She suggested that the deceased should be ferried to the hospital urgently.

When the witness tried to speak to the deceased, the accused came over to the witness to stop her from speaking to the witness giving the reason that the deceased had been burnt.

The witness accompanied the deceased to the hospital in the first witness's vehicle.

The witness evidence was not contentious, and, in any event, was relevant in respect of completing the chain of events. Nothing really turned on it. The court took and accepted the evidence as given.

The State closed its case....,.

The accused elected to give evidence.

He testified, on oath, that, the deceased was his wife of five (5) years. He denied killing her. On the fateful night, he said that he arrived at the deceased's room around 0100 hours, knocked at the door, and was let in. They greeted each other. He sat on a chair whilst the deceased returned to bed. He then told her that he wanted to speak to the deceased about rumours going around in town and being peddled by other people.

The deceased got out of bed and put on her skirt and blouse. She then pulled a chair and sat across the table from where he sat.

The accused said that he accosted the deceased of being in the habit of frequenting bars in his absence. He told the deceased that she had been seen by his brother's sons, called Kuda Muza and Chivizhe. He then chided her that her frequenting of bars was a source of embarrassment for him.

The deceased did not respond.

He said that the deceased suddenly got up and said that she would set herself on fire. She was working her way to the primus stove as she spoke. The accused had bought for her the primus stove to use in the event that there was no electricity supply. The deceased then poured paraffin on herself, let go of the stove, and got hold of matches.

He quickly grabbed both her hands to disable her from striking the matches. He then firmly gripped the hand which held the match box, took away the match-box and slipped it into his pocket.

He said that he asked the deceased as to why she wanted to set herself alight. The deceased did not respond, but returned to sit on the chair that she had risen from.

After the deceased sat down, he said that he asked her, again, as to why she wanted to set herself on fire and yet all that he was doing was to reprimand her; which was something that did not justify her to set herself on fire.

The deceased did not respond.

He said that he tried to telephone the deceased's sisters and aunt but their phones did not go through. He then sat in his chair for some time apprehensive that the deceased could do something like burning herself. He said that he dozed off because he suddenly heard the sound of a chair moving.

He saw the deceased take another match box.

This was about 30 minutes later after dozing off when he woke up to the sound of a moving chair. He stood up but the deceased lit the matches and set herself ablaze. She then directed the match box towards the accused's bossom. The deceased tried to light the matches in order to set the accused alight but it did not light up.

The accused said that he was surprised because he thought that the paraffin was no longer flammable.

The accused said that he thought about how he could put out the fire. He wore a nylon t/shirt and could not use it. There was a bed with blankets next to where the deceased was but he could not use the blankets because the deceased ran towards him and she appeared as if she wanted to grab him by the neck. She however held his arm in a firm grip as she screamed. He said that he suffered some abrasions. He then said:

“I realised that the fire intensity had increased and I said lets got to the tap so that I put out the fire. She went out first. I followed and said kneel down so that I pour water on you. I then ran some water over her.”

The accused said that Tawanda Miti, the first State witness, and his wife, woke up as he was by the water tap.

Tawanda Miti then said that something was burning and gave the accused a bucket with water telling him to put out the fire. The accused then noted that there were clothes burning on the floor and he stamped on the flames with his feet. He thereafter exited the deceased's room and found the deceased telling Tawanda Miti that he, the accused, had set her on fire.

The deceased was crying as she narrated her ordeal to Tawanda Miti.

The accused said that he then denied burning the deceased and the deceased kept quiet.

He said that the deceased only called out to Tawanda Miti when she was coming from the tap and not before.

When asked by his counsel to suggest any reason why the deceased would have accused him of setting her on fire, the accused responded: “I think it is because of the way I had spoken to her about her behaviour.”

Under cross examination, the accused admitted that he heard the deceased telling Tawanda Miti that the accused had burnt her. He however said that this was said after the fire had been extinguished. He also agreed that the deceased said: “why did you not also burn yourself and die too!” He said that she however was lying, and that, considering her state, he saw no useful purpose in denying.

He said that her utterances, pointing him out as her assailant, were intended to fix him.

The court sought clarifications, on whether the accused saw the place from where the deceased got the matches which the deceased used. He said that he suspected that the box must have been by the of corner table where the deceased sat. The two of them sat 1–2 metres apart. He said that the deceased was his second wife.

The above summarised evidence was, in the main, the accused's trail of events.

The court must decide whether, on the totality of the evidence, the State proved the charge against the accused beyond a reasonable doubt.

Firstly, commenting on the accused's demeanour, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife as per his testimony. The accused's demeanour was adjudged not to be impressive.

It is common cause that there was no independent witness to testify as to how the deceased ended up with the burns. The case falls to be determined on the basis of circumstantial evidence.

In this regard, the principles set out in the case of R v Blom 1939 AD 188 remain authoritative and continue to be followed in this jurisdiction.

In Zacharia Amons Simango v S SC42-14 and Abraham Mbovora v S SC75-14, the Supreme Court held the principles in R v Blom 1939 AD 188 to still hold good in this jurisdiction.

GOWORA JA, in Amons Simango v S SC42-14, stated that there are two cardinal rules which govern the use of circumstantial evidence in a criminal trial, being:

“(1) The inference sought to be drawn must be consistent with all the proven facts.

(2) The proved facts should be such that they exclude every possible inference from them save the one to be drawn.”

As regards the material facts as to what happened at the critical time, it is not disputed that the deceased suffered paraffin burns resulting from her being on fire.

The issue for determination is whether or not the deceased poured paraffin upon, and burnt herself, or it was the accused who sat her alight after pouring paraffin on her.

The State evidence, which was not disputed, was that the deceased pointed out to the accused as the perpetrator who poured paraffin on her and set her ablaze.

It is also not disputed that the accused, prior to the disputed incident with regards how it happened, had come to the deceased's place in the early hours of the morning. The accused accosted the deceased on allegations that the deceased was frequenting bars in his absence and of infidelity.

Such accusations involve matters of emotion; moreso on the part of the accuser who invariably requires answers and confessions.

If, as the accused alleged, the deceased chose to keep quiet and not deny the allegations, it is unlikely that the accused would have taken kindly to this.

The court reasoned, that, the discussion between the two could not have been an amicable one and the accused, in fact, was, in all probability, incensed because he allegedly had evidence of his relatives having informed him.

The accused sought to give the court the impression that he was simply engaged in a mutual and amicable discussion. The court reasoned, that, the interrogation of the deceased could not have been, and, in all probability, was not amicable.

The conduct of the accused had to be looked at within this background founded on probabilities.

The accused's evidence was that the deceased did not respond to the allegations which he made against her but chose to behave as described by the accused, that is: “she suddenly got up and said I will set myself on fire.”

Such reaction and conduct was, in the view of the court, illogical and improbable to a point that it can safely be said not to have happened.

In fact, what the accused seeks the court to accept was a scenario where the deceased was simply asked as to why she went to bars in the absence of the accused and she responded by pouring paraffin upon and setting herself alight.

When assessing evidence, it is trite that the accused's explanation or version of evidence should not be rejected for merely being improbable. It will be rejected only if it is so inherently improbable that it could not reasonably be said to be true: see Shusha v S [2011] ZASCA 1712.

In the reasoning of the court, it is inherently improbable that where parties are involved in a love or marriage relationship, and one party accuses the other party of improper behaviour and infidelity, the accused party does not answer the allegations, but, instead, suddenly adopts a dangerous manoeuvre to inflict harm or injury on themselves.

The inherent improbability in the accused narration of events would need to be considered together with other proven facts in drawing the appropriate inference.

The undisputed evidence of State witnesses was that the deceased named the accused as the person who had poured paraffin on her and set her ablaze.

The complainant was heard screaming and calling out to the neighbours. She did not call out to the accused person.

If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to, and in her presence, to assist her or come to her aid.

It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.

The accused, in his warned and cautioned statement, stated that he opened the door whilst the deceased was holding on to him in an embrace and crying - the accused does not appear to have suffered any injury to his person or damage to his clothing. He stated therein, at the time, that, when he opened the door, the fire was burning heavily.

He indicated therein, that, the deceased ran to the tap where she poured water on herself and that he followed and assisted her to extinguish the fire.

There was a variance with his evidence in chief because when he testified, he said that it was him who suggested to the deceased that they should go to the tap so that he extinguishes the fire. He further said that when he followed to the tap, he asked the deceased to kneel down so that he pours water on her.

The impression which one gets from the testimony is that the accused went all out to assist the deceased and even suggested how the fire could be extinguished.

He was, on his evidence, the savior.

It then becomes mind boggling that immediately following the accused's acts of benevolence towards the deceased, the deceased would immediately turn against her benefactor, after being assisted, and accuse him of burning her.

When a court assesses evidence, it does not treat each individual piece of evidence as an isolated component. Pieces of evidence constitute a mosaic of proof. Doubts in relation to one piece of evidence naturally arises if one picks and chooses to focus on individual evidential pieces. Doubts may be removed when all pieces of evidence are considered together taking into account probabilities.

Whilst the court critically interrogates and subjects each piece of evidence to examination, it is, in the final analysis, necessary to then consider the mosaic as a collective body of evidence. If evidence is not considered together, the court runs the risk of failing to pick the wood from the trees.

In R v Sibanda & Others 1965 (4) SA 241 (RA), BEADLE CJ…, stated, when dealing with circumstantial evidence, as follows;

“The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable ground for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

In S v Chabalala 2003 (1) SACR 134 (SCA)…, it is stated:

“…,. The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence, or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”

The upshot of the dicta in the above cases is that the court should always approach the assessment of evidence holistically and not nitpick aspects or components of evidence without relating them. It is the totality of the evidence which must be considered, and, a founding of guilt or innocence should not be based upon a consideration of facts treated in isolation but collectively.

In casu, the only factors indicative of the accused's innocence were his denial that it was not him who had committed the felony when the deceased pointed him out. He did not deny that the accusation against him was made.

There would appear to have been no logical reason for the deceased to have named the accused and attributed the pouring of paraffin and lighting of the deceased to the accused.

The reasoning of the court, in this regard, has been explained.

Had the deceased awoken to find herself on fire, she would, in all probability, have suspected the accused as he was the only person in the room. However, in casu, the events took place when the deceased was awake and there would, on the proven facts, have been no compelling reason for the deceased to attempt a suicide and attribute the act to the accused.

Counsel have raised the question of res gestae and argued that the evidential facts disqualify the application of the doctrine.

The defence counsel argued that there was no spontaneity in the deceased's exclamation pointing out to the accused as the assailant. For his part, the State counsel, in his closing submissions, indicated that he stood by his submissions in which he had earlier conceded to the defence application for discharge.

The court found the State's approach to be wholly unhelpful.

The State counsel did not even comment on the defence evidence and the probabilities.

It goes without saying, then, that the court does not agree with the veiled concession by the State that the State evidence was inadequate to support the charge.

The unfortunate attitude adopted by the State counsel appeared to be that of saying: “I have already made up my mind that the State has not proved a prima facie case. The court can proceed to make a contrary determination if it wishes.”

Such attitude and approach is improper.

Counsel needed to address the further evidence adduced after the dismissal of the application for discharge of the accused.

Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation that the cause of the fiasco was the accused.

To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach.

The deceased named the accused, at the first opportune time, after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.

The court has already dealt with the issue of the absence of the post-mortem report.

The issues in the case were not that the deceased could have met her death through other causes. The issue was whether the accused is the one who poured paraffin on the deceased and set her ablaze resulting in injuries from which the deceased died.

In such a case, a postmortem would simply be there to give credence to the admitted fact, and its absence is not therefore fatal to the State case.

Having considered all the evidence holistically, and, properly guided by case law on the approach to dealing with circumstantial evidence, the court determined that the only reasonable inference to be drawn on the evidence was that of the guilt of the accused.

The court determined, that, it was the accused who set the deceased ablaze after pouring paraffin on her, and, that, when he did so, he foresaw or realized a real risk or possibility that his conduct may cause death and continued in that conduct regardless.

The accused is therefore found guilty as charged under section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: that is, murder with constructive intent.

Final Orders re: Composition of Bench iro Court Verdict, Incapacitation and Disagreements Between Presiding Officers


An application for discharge of the accused person, made in terms of section 198(3) of the Criminal Procedure and Evidence Act, raises an issue of law, and, as such, in terms of section 10(1)(a) of the High Court Act [Chapter 7:06], a determination of the application lies within the jurisdiction of the judge only. 

Assessors have no voice or input in the decision.

Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept


The word prima facie is a latin word which means 'at first view' or 'on the face of it.'

A prima facie case will be established where facts alleged, if not rebutted, would result in those facts being conclusive to found a case against the accused.

Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie


The word prima facie is a latin word which means 'at first view' or 'on the face of it.'

A prima facie case will be established where facts alleged, if not rebutted, would result in those facts being conclusive to found a case against the accused.

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court


I must comment that l found the submissions by the defence counsel to be well-researched and assistive to my determination.

Unfortunately, I cannot say the same for the State's submissions. State counsel's submissions showed a misdirected understanding of the requirements and principles which inform applications made under section 198(3) of the Criminal Procedure and Evidence Act....,.

State counsel must learn from this judgment.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused pleaded not guilty to the allegations, that, on 23 October, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her alight with the result that Modester Chikaka suffered severe burns all over her body which in turn led to her death on 26 October 2011.

The accused elected to give a Defence Outline in support of his plea of denial.

The upshot of his Defence Outline was to the effect that the deceased poured paraffin on herself and set herself alight and that he did not pour paraffin upon the deceased nor setting her alight. He outlined that he confronted the deceased in connection with her “suspected numerous extra marital affairs” since the deceased was his wife. He further outlined that the deceased in fact poured paraffin from a stove upon herself and “somehow” went ahead to and lit herself despite the accused's attempt to stop the deceased from doing so.

He stated that the deceased, after setting herself alight, tried to “embrace the accused person intending to cause harm to him but he managed to slip away going out of the room.”

He outlined that he assisted the deceased to “put off the fire by pouring some water on her at the water tape which was near the house.”

He also further “extinguished the fire which was burning inside the house in question.”

In manner of speaking, the accused's defence was simply, that, the deceased intentionally brought about her death, or committed suicide, by pouring paraffin upon and setting her body alight.

The State opened its case by tendering and producing, by consent of the accused, two affidavits sworn to, respectively, by doctors Ndekwere and Munhumeso.

The affidavit by Dr Ndekwere was produced as exhibit 1.

He examined the now deceased following her transfer from Chivhu Hospital to Harare Hospital on 23 October 2011 around 10:20 hours. He observed and commented that the deceased had suffered 76% open flame burns on her torso, lower, and upper limbs, as well as on the neck. The doctor recommended that the patient should be admitted in the Burns Ward at the hospital.

Exhibit 2 was also a medical affidavit prepared by Dr Munhumeso who examined the now deceased on 23 October 2011 around 0300 hours at Chivhu Hospital. He observed that the now deceased had sustained paraffin burns on the chest, abdomen, and both upper limbs. He stablilized the patient and caused the patient's transfer to Harare Central Hospital for further management after noting the seriousness of the burns which he assessed to be about 35% surface burns.

Another exhibit produced by consent was the accused's confirmed warned and cautioned statement as exhibit 3.

The statement was confirmed by the magistrate on 16 November 2011 following its recording on 2 November 2011.

The accused's statement was to the following effect, quoted verbatim:

“I have understood the caution, but I am denying the charges. On the day in question, I arrived at Modester Chikaka's house at around 0130hrs. She opened the door and I went inside the house and set on a chair. After greetings, I then told her that I wanted to discuss some stories, which were circulating in town, of her affairs with other men. I told her that I was not happy about that because it was embarrassing me.

After I had told my story, that is when Modester Chikaka woke up from the bed where she was sleeping and put on her skirt and blouse, sat on a chair on the other side of the table. She did not respond to any of the questions I put to her.

She got up from where she was seated and picked up a paraffin stove, which was next to the bed, opened it, and poured the paraffin on her clothes. She put the stove on the floor. I then stood up and went to where she was after I had noticed that she was looking for some matches. When I grabbed her, she was already having some matches in her hand. I got hold of her hands so that she could not lit the matches.

We struggled with each other in the house until I managed to take the matches from her.

She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding.

Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tap where she poured some water on her.

I followed her to the tap, helped her to extinguish the fire.

I then went into the house to extinguish fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time. I then boarded Cst Miti's car and went to the hospital. We further visited the police station where I was arrested and Modester Chikaka was taken to the hospital.”

It is important to note the following significant points and conclusions from the statement:

(i) The deceased had already retired to bed at the time that the accused arrived at the deceased's house around 0130 hours. The deceased opened the door, let the accused inside, and the latter sat on a chair.

(ii) The accused confronted the deceased to discuss rumours circulating in Chivhu town, that the deceased was having affairs with other men; such rumours being an embarrassment to the accused and over which he was unhappy.

(iii) The deceased did not respond to the accusations, but, instead, left the bed where she had gone back to sleep, put on her skirt and blouse and sat on a chair on the other side of the table from which the accused sat.

(iv) The deceased, without saying anything, stood up from the chair, picked up a paraffin stove which was next to the bed, opened it, and poured the paraffin on her clothes.

(v) The accused stood up from his chair after noticing that the deceased was looking for some matches. He managed to grab the deceased's hands which were holding some matches so that she would not light the matches. The accused and the deceased struggled with each other and the accused succeeded in taking away the matches from the deceased.

(vi) After the accused had dispossessed the deceased of the matches, the two returned to their sitting positions on the chairs which they had been sitting on before the struggle for possession of the matches.

(vii) For the next ten to fifteen minutes, the accused continued to interrogate the deceased in regard to the same rumours, that the deceased had boyfriends. The deceased did not respond to the accusations.

(viii) As the accused was still seated, the deceased got up from where she was seated, picked up another “matches” struck a match stick and lit herself before the accused could get close to where the deceased was.

(ix) The deceased, after setting herself ablaze, embraced the accused whilst she was screaming. The accused was able to open the door as the deceased was still in an embrace on him and she was crying.

(x) When the door was opened, the fire burned heavily. The deceased then ran to the tap where she poured water on herself. The accused followed and assisted the deceased to extinguish the fire.

(xi) The accused returned to the house, went inside, and extinguished the fire which was burning there. It was then that the deceased informed her neighbours that the accused had burnt her.

(xii) The accused did not dispute the accusation because to him it was a waste of time.

It was therefore clear, on the accused's account, as given to the police, that, the deceased and the accused were engaged in a disagreeable discussion when the tragedy took place.

The accused's explanation to the police was therefore simply, that, when he confronted the deceased about rumoured affairs which the deceased allegedly had with other men the deceased neither denied the accusation nor admitted them. Her response was to open the paraffin stove, pour paraffin upon herself, and attempting to burn herself before being disabled by the accused where after she sat back on the same chair that she had been seated on before her failed attempt to burn herself.

Another follow up interrogation of 10–15 minutes resulted in the deceased reaching for another box of matches and setting herself alight before embracing the accused whilst screaming.

The accused opened the door to the house/room whilst the deceased still held him in an embrace. The deceased then ran to the water tap and poured water on herself with the accused following and assisting her. The deceased reported that the accused had burnt her, an accusation which the accused did not contest because to do so would have been waste of time.

At this stage, it is necessary to note, that, the accused's confirmed statement, whose contents have been outlined, will, as provided in section 256(1) of the Criminal Procedure and Evidence Act, be taken as evidence against the accused, there being no challenge to its admissibility or authenticity.

Accordingly, the statement will be considered together with all other evidence adduced by the State in assessing the sufficiency of evidence led in support of the charge or allegations against the accused.

The State also led evidence from three witnesses, namely, Tawanda Miti, Nyasha Tsopotsa, and Sekai Guramatunhu. The summary of the evidence of these witnesses was as outlined hereunder:

Tawanda Miti

Is a police officer with C.I.D and is based at Southerton Police Station, Harare. When the incident in this matter took place, he was stationed at Chivhu police station. He knew both the deceased and accused as lovers. The deceased and the witness shared the same residence where they lived in adjoining rooms sharing the same veranda. The residence was in the form of a standard block with partitioned rooms each room with its entrance door which was accessed from the veranda. When one is standing on the veranda, the doors to the rooms lead into the rooms from the veranda. The deceased occupied one room at the furthest end. The witness used the next two rooms after the deceased's room and the fourth room door led into the common washroom and toilet. Behind the toilet was a water tap.

There was no dispute as to the make-up of the residence and the rooms.

He testified that he had retired to bed with his wife when he woke up around 2:00am to screaming by a person calling out his name. He got out of bed, opened the door, and got out of his room. He then saw fire flames inside the deceased's room. He was shocked by the spectacle. He then saw the accused arriving on the veranda and he ordered the accused to put out the fire. He next observed the deceased coming from behind the residence in the direction where there was a water tap. He observed burns on the deceased.

He then heard the deceased to say to the accused: “why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased went on to tell the witness that the accused had poured paraffin on her and lit her up.

The deceased also said that the accused had the matches on him, to which the accused responded that the deceased had poured paraffin on herself.

The witness, at this stage, instructed his wife to cover the deceased with a blanket after where the witness provided his vehicle and ferried the deceased and accused to the police station where the accused was placed under arrest and the deceased ferried to hospital.

The State counsel asked the witness to repeat the exact words which the deceased reportedly uttered to the witness when the witness came out of his room to check on what was happening. The witness said:

“She said accused took paraffin from a paraffin stove and poured on her. He then took a matchstick, lit it, and threw it at me. She then went out of the house to pour water on myself whilst screaming.”

The witness further repeated, that, the deceased, when coming from the tap, said: “why did you not set yourself ablaze too since you wanted both of us to die? Why have you killed me?”

Asked whether the accused responded, the witness responded that the accused answered: “I did not kill you. You poured paraffin on yourself.”

The witness said that the accused proceeded to extinguish the fire in the house after coming on to the veranda from the direction of the tap as per the witness assumption.

Under cross-examination, the witness admitted that he did not know for a fact as to who poured paraffin on the deceased. He also did not witness the accused setting the deceased on fire.

The witness was asked: “You did not hear her calling out that accused had set her ablaze whilst you were in your room?” and he responded; “She was saying that. She said so as she called out for my help.”

The witness agreed that in his witness statement, recorded on 3 November 2011, he did not mention that the deceased had shouted that the accused had set her ablaze.

The witness said that the omission could have been a result of oversight.

The witness agreed that he could not deny that the accused assisted the deceased to douse off the flames at the tap.

The witness agreed that the accused denied that he had set the deceased ablaze when the deceased was making the accusation.

He agreed that the accused had responded that the deceased poured paraffin on herself.

The witness said that prior to hearing the screaming which woke him up, he did not hear any commotion whilst he was asleep.

He said that the accused was searched at the charge office and found to be having a box of matches in his pocket. The witness agreed that in his recorded statement he stated that the accused explained his possession of the matches by saying that he took the box of matches from the deceased.

The court's assessment of the evidence of this witness was that he was an honest and impressive witness who gave a simple narration of the events which he witnessed. The cross examination of the witness was not eventful because he maintained his story.

His evidence was clear, that, the deceased accused the accused person of pouring paraffin upon her and setting her ablaze with matches. His evidence was equally clear that the accused responded to the allegation by denying the accusation and instead accusing the deceased of having poured paraffin on herself and set herself ablaze.

It was not suggested to the witness that the deceased did not name the person who had harmed her. What was put to the witness in cross-examination was that the accused denied the allegation.

It was not denied that the deceased went further to ask the accused as to why he had not equally poured paraffin upon himself so that he dies together with the deceased as he had wished or declared.

It was not denied that the deceased uttered the words: “why have you killed me?”

The court, having been impressed by the demeanour of the witness, his self-confidence, and standing unshaken under cross-examination, accepted the evidence of the witness as reliable.

The next witness was Nyasha Tsopotsa, the wife of the last witness.

She testified to having been asleep with the last witness when she heard screaming sounds and a door being forcibly opened. The first witness woke up as well, but, before either of them had left their room, the witness heard the sound of footsteps outside going in the direction of the water tap. The person screaming was calling out her husband, the first witness name.

The first witness went out of their room first before she followed.

When she exited their room, she saw the deceased behind the toilet door dressed only in her petticoat which was stuck to her body. The deceased had visible burns. She saw the accused by the door of the deceased's room.

She heard the deceased saying to the accused: “Dai wandipedza. Wabvira kundishungurudza, wandipisa” which words translated into English mean: “You should just have finished me. You have been persistent in harassing me. You set me on fire.”

She heard the accused to respond saying: “You set yourself on fire.”

She testified that the last witness ordered her to find something to cover the deceased with. She obliged and took one of the deceased's bed sheets and covered her with it.

The first witness, the deceased, and the accused then drove away in the first witness's vehicle.

When asked to recite the first words which she heard the deceased to say, she responded and said in Shona: “Maiwe ndofa” which was translated as: “Mother, I am dying!”

She said that she heard screaming and the door opening at the same time followed by footsteps which proceeded in the direction of the tap.

When the deceased was screaming, she was shouting: “Father of Brendon” in reference to the first witness.

When the witness came out of her room, she said that she saw the deceased talking to the accused person accusing him of having set her alight.

The witness remained at home when the deceased and the accused drove away from the scene.

Under cross examination, the witness agreed that she did not hear the deceased to say that someone was killing her. She said that she heard the deceased saying: “Mother, I am dying.”

The witness said that she did not know what had happened prior to this.

The witness reiterated that when she got out of the house, she heard the deceased saying to the accused: “You poured paraffin on me and burnt me.”

The witness said that she could not dispute that the accused assisted in dousing the deceased of the fire burning her because by the time she got to the scene, the deceased was behind the toilet door accusing the accused of pouring paraffin on her and setting her blaze.

The witness agreed that the accused disputed or denied the allegation.

The witness was not re-examined nor did the court seek any clarifications on her evidence.

The court, as with the last witness, was impressed by the demeanour of the witness. In fact, nothing eventful or new came out of the cross-examination of the witness. Her evidence was largely corroborative of that of the last witness.

Significantly, the accused's counsel, in cross examination, did not deny that the deceased made accusations pointing to the accused as having poured paraffin on her and set her light.

The witness evidence, that the deceased accused the accused of persistent harassment, and that the deceased said that you should have finished me, were not disputed either.

The court therefore accepted that the deceased uttered the words testified to by the witness.

The court also noted that the accused denied the accusations.

The last witness was Sekai Guvamatunhu, a police constable who was one of the duty officers at Chivhu Police Station when the deceased was brought to the police station by the first witness who made a report concerning the deceased having suffered burns.

The deceased was inside the first witness's car.

The witness proceeded to the vehicle, which was parked outside the charge office, and observed the deceased. She noted that the deceased had severe burns. She suggested that