Domestic Violence re: Approach and the Peace Order

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING
Ruled By: NDOU J

The background facts of this matter are the following. The applicant and the first respondent are husband and wife. They are on separation and there are divorce proceedings pending between them. The separation between them is acrimonious. In October 2009, the first respondent sued the applicant for maintenance. The matter was set down for hearing on 29 October 2009. On that day there was a preliminary enquiry on the first respondent's application. The matter was postponed to a later date in November 2009 to enable the applicant to produce proof of his earnings. On the latter date, the first respondent was not in attendance resulting in the matter being removed from the roll.

Thereafter, in March 2010, the respondent instituted proceedings against the applicant out of the Juvenile Court under section 11 of the Domestic Violence Act [Chapter 5:16]..,. In this application in the Juvenile Court, the first respondent sought against the applicant a provisional protection order. The interim protection order was granted and the return date was set down for 12 March 2010. On 12 March 2010, the magistrate confirmed the provisional order, and, in addition granted an emergency monetary relief in favour of the first respondent against the applicant in the sum of US$2,000= per month. The applicant protested the confirmation of the protection order and the granting of the emergency monetary relief by noting an appeal on 17 March 2010. Notwithstanding the noting of the appeal, the second respondent issued a directive against the applicant's salary.

This is what this application is all about.

Stung by the prospects of US$2,000= being deducted monthly from his salary, the applicant sought to have the directive by the second respondent reviewed. He, simultaneously filed this application to stay the directive against his salary under a certificate of urgency.

The main protest by the applicant, in these two applications, is that he was not notified of the directive before it was issued by the second respondent. The applicant bases his application for review on such failure to comply with the provisions of section 9(2) and (3) of the Maintenance Act [Chapter 5:09].

Section 9(1) of the Maintenance Act [Chapter 5:09] clearly states that section 9 of the Maintenance Act [Chapter 5:09] applies to orders made under the Maintenance Act [Chapter 5:09] and maintenance orders of other courts registered in terms of section 18 of the Maintenance Act [Chapter 5:09].

The crux of the matter is whether an emergency monetary relief, i.e. a section 11(d) of the Domestic Violence Act [Chapter 5:16], is an order registered in terms of section 18 of the Maintenance Act [Chapter 5:09].

Section 11(1) of the Domestic Violence Act [Chapter 5:16] creates three main kinds of relief orders, namely, a protection order, emergency monetary relief and award of temporary custody. The protection order is final by operation because section 11(2) of the Domestic Violence Act [Chapter 5:16] provides-

“Subject to subsection (3), a protection order shall remain in force for a minimum period of five years or until revoked or varied by court in terms of section 12.”

The emergency monetary relief and award of temporary custody are emergency temporary orders. Section 11(3) of the Domestic Violence Act [Chapter 5:16] provides-

“Any direction to pay emergency monetary and any award of temporary custody of any person which is contained in a protection order shall remain in force for such period not exceed six months as the court may specify, unless, prior to the expiry of that period, the direction or award is revoked or extended by court in terms of section 12 or an order or award is made in respect of the same matter by any other competent court:

Provided that no such extension shall exceed a period of three months at a time.”

In casu, the applicant did not seek revocation in terms of section 12 of the Domestic Violence Act [Chapter 5:16], but chose to approach this court for review of the act of the second respondent.

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING
Ruled By: NDOU J

The purpose of the Domestic Violence Act [Chapter 5:16] is to provide relief to victims on an interim basis whilst the other competent courts are still determining the main issues. In cases of divorce, as is the case here, the complainant party must be protected against violence. Such party, and the children, must be maintained in ...

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

This is an appeal against the judgment by the Harare Magistrates' Court delivered on 16 March 2010….,. The facts giving rise to this appeal are as follows: The Magistrates Court, applying the provisions of the Domestic Violence Act [Chapter 5:16] (hereinafter the DVA) granted an interim protection order in favour of the respondent which was later confirmed on 16 March ...

This is an appeal against the judgment by the Harare Magistrates' Court delivered on 16 March 2010….,.

The facts giving rise to this appeal are as follows:

The Magistrates Court, applying the provisions of the Domestic Violence Act [Chapter 5:16] (hereinafter the DVA) granted an interim protection order in favour of the respondent which was later confirmed on 16 March 2010. The final protection order confirmed by the court a quo reads as follows:

“1. The protection order be and is hereby confirmed as prayed for.

2. The respondent (now the appellant) is interdicted from selling the matrimonial home, being Number 50 Banister Road, without the consent of the applicant or a valid court order.”

Dissatisfied with the court a quo's judgement in respect of item (2) above the appellant caused notice of appeal to be filed with this court on 24 March 2010 on the following grounds;

“Grounds of Appeal

1. The learned magistrate erred in referring to Number 50 Bannister Road as the parties' matrimonial property when in fact the parties are not legally married and the house was bought by the appellant before he started living with the respondent in an unregistered customary law union.

2. The learned magistrate erred in interdicting the appellant from selling the above mentioned house without the respondent's consent or a valid court order when in fact the house in question is owned by the appellant who bought the same before he started living with the respondent.”

It is common cause that the parties are not legally married. The parties entered into a customary law union in 2002 and have been staying together as “husband and wife” to date. Two children were born out of this customary law union and the parties reside at Number 50 Bannister Road, Braeside, Harare. The house in question is registered in the appellant's name and was so registered on 31 December 1996, about six years before the appellant and the respondent entered into the customary law union. It is not disputed that the appellant bought the house in question through a loan advanced to him by his then employer, Reserve Bank of Zimbabwe.

The appellant's position is that he is not legally married to the respondent and that the respondent has no legal claim to the house. On the other hand, the respondent's contention is that when she entered into a union with the appellant in 2002 the appellant had not fully paid up the bond and was in arrears. The respondent alleges that she helped with the payments of monthly instalments until the bond was paid up in full in 2004. The respondent, on that basis, alleges that she made significant contributions to the ultimate acquisition of the house as she was, at the material time, gainfully employed as a Sales and Marketing Manager by Netcom M Systems and earned more than the appellant.

It is common cause that the parties are experiencing serious marital problems threatening to tear their customary law union apart. The appellant is accused of infidelity, various forms of abuse, and that he harbours an intention to sell the matrimonial house, Number 50 Bannister Road, Braeside, Harare behind the respondent's back - which would result in the respondent and the two children being homeless. The appellant, on the other hand, disputed the allegations of abuse, and, instead, accused the respondent of verbally and emotionally abusing him to the extent that the respondent burnt his personal clothes in 2009 - a fact not denied by the respondent. Instead, the respondent said she acted in that manner, in August 2009, after the appellant had brought a prostitute home in the respondent's presence.

The court a qou shied away from dealing with the issue of the contribution of the parties in the acquisition of the house in question but did find that the appellant had breached the provision of the Domestic Violence Act [Chapter 5:16] (DVA) in that he abused the respondent and also wanted to sell the house in issue without the respondent's consent. This is the basis upon which the interim protection order was confirmed.

There are only two issues which exercised our minds and therefore fall for determination in this appeal. There are;

1. Whether an appeal lies against the judgment appealed in view of the fact that the Domestic Violence Act [Chapter 5:16] (DVA) makes no provision in respect of appeals.

2. The substantive correctness of the interdict granted against the appellant barring the appellant from disposing of the so-called matrimonial house, Number 50 Bannister Road, Braeside, Harare.

I now proceed to deal with these issues….,.

The substantive correctness of the interdict granted

The next issue to consider is whether the court a quo acted properly within the confines of the law in granting the order which is the subject of appeal.

Section 3 of the Domestic Violence Act [Chapter 5:16] (DVA) deals with the meaning of domestic violence and its scope. The first point to consider is whether the selling or threat to sell matrimonial property constitutes domestic violence. This question is answered with regard to the provisions of section 3(1)(k) of the Domestic Violence Act which defines domestic violence as:

“3(1)(k) the unreasonable disposal of household effects or other property in which the complainant has an interest.”…,.

In terms of section 11 of the Domestic Violence Act [Chapter 5:16] (DVA) dealing with the contents of a protection order; a protection order may, where appropriate;

“11(1)(a) prohibit the respondent from committing or enlisting the help of another person to commit any act of domestic violence.”

In casu, the court a quo could only competently grant the interdict if it was satisfied that the applicant was engaged in unreasonable disposal of property in which the respondent has an interest. This important point seems to have eluded the learned magistrate who failed not only to consider the nature of the relationship between the parties and the nature of the interest the respondent may competently have at law in the property involved. No inquiry in this regard was made and this is a serious misdirection.

I have already alluded to the nature of the relationship between the parties and the property involved. The appellant and the respondent are not legally married hence they may not be afforded the same protection as is provided in respect of parties who are legally married. A customary law union is not regarded as a valid marriage in terms of our law and is only recognised for limited purposes provided for through statutory provisions. To put it bluntly, the respondent cannot regard herself as the appellant's wife at law. She cannot competently sue for divorce and division of the matrimonial estate in terms of section 5 and 7 of the Matrimonial Causes Act [Chapter 5:13].

The property in issue, even assuming that the appellant intends to dispose of the same, is registered in the name of the appellant. This aspect would remain valid even if the appellant and the respondent were legally married. The appellant has a deed of title. In Takafuma v Takafuma 1994 (2) ZLR 103 (S) the Supreme Court said:

“The registration of rights in immovable property in terms of the Deeds Registries Act is not a mere matter of form. Nor is it simply a device to confound creditors or tax authorities. It is a matter of substance. It conveys real rights upon those in whose name property is registered. See the definition of 'real right' in section 2 of the Deeds Registration Act [Cap 139] (as it was). The real right of ownership, of jus in re propria, is 'the sum total of all the possible rights in a thing'. See WILLE's Principles of South African Law 8^th ed at 255.”

The interdict granted by the court a quo ignores this basic principle and therefore falls on that simple basis alone….,.

1….,.

2. The order of the court a quo, in paragraph (2), relating to an interdict is hereby set aside.

HHH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

The intention of the legislature, in enacting the Domestic Violence Act [Chapter 5:16] (the DVA), was not only to promote the eradication of domestic violence, but to promote harmony in families….,. In State v Muchekayawa, Criminal Review Judgment; HB42-12; 2012 ZLR 272, the reviewing judge had this to say: “Magistrates should always request the complainants in such cases to obtain medical ...

The intention of the legislature, in enacting the Domestic Violence Act [Chapter 5:16] (the DVA), was not only to promote the eradication of domestic violence, but to promote harmony in families….,.

In State v Muchekayawa, Criminal Review Judgment; HB42-12; 2012 ZLR 272, the reviewing judge had this to say:

“Magistrates should always request the complainants in such cases to obtain medical reports for the court to assess not only the degree of injuries suffered but the likelihood of any permanent disability. I note here that both prosecutors and magistrates pay scant regard to section 5 of the Domestic Violence Act which places duties on police officers, in relation to domestic violence, in the following terms under section 5(2):

'A police officer to whom a complaint of domestic violence is made or who investigates such complaint shall…, obtain for the complainant, or advise the complainant how to obtain, shelter or medical treatment, or assist the complainant in any other suitable way.'”…,.

The Domestic Violence Act is unique in its recognition and promotion of family values, of adhesion and cohesion of the nuclear family. In recognition of its objective to bring families together as opposed to contributing to their break-up, provision is made in the Act for the appointment of anti-domestic violence counsellors by the Minister responsible for social welfare, health, child welfare and gender or women's affairs. There is a panel of anti domestic violence counsellors drawn from social welfare officers, members of Private Voluntary Organizations that deal with domestic violence issues, chiefs or headmen.

The functions of anti-domestic violence counsellors include advising, counselling and mediating the solution of any problems in personal relationships that are likely to lead to domestic violence, investigating the financial status of the parties at the request of the court, investigating and making immediate accommodation arrangements for complainants prior to the issue of protection orders, arranging medical treatment and examination of any minors who are complainants. In carrying out these duties, the anti-domestic violence counsellors may call upon the police for assistance. Judicial officers are reminded of the need to send families for counseling where the domestic violence complained of continues despite initial conviction or sentencing.

HHB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

This is an appeal against a sentence of 24 months imprisonment of which 8 months imprisonment were suspended for 5 years on the usual conditions of future good conduct.

The appellant, who then was aged 32 years, was arraigned before a senior magistrate sitting at Kezi on 24 November 2009 facing a charge of contravening section 4(1) as read with section 3(1)(a) of the Domestic Violence Act [Chapter 5:16].

The allegations were that on 1st of November 2009, at her homestead in Natisa area of Matobo, the appellant, by means of an unlawful act which resulted in direct infliction of physical injury, severely and intentionally burnt Prince Nkosi, her son aged ten years, on both palms with hot charcoal and on the mouth with hot ashes.

The agreed facts are that the complainant was doing Grade 4 at Whitewater Primary School. On the day, at around 0800 hours, the appellant went to church leaving the complainant and his sister, Adelite Nkosi, at home. Around 1300 hours the complainant became hungry and took the appellant's jollie juice/sweet aid valued at R1 which he diluted with water and drank. On returning from church, and discovering the consumption of the sweet aid, the appellant accused the complainant of being a thief who should be taught a lesson. She took the complainant into the kitchen hut where she took two pieces of hot charcoal and put each in the complainant's palm. She proceeded to fill a tablespoon with hot ashes and put it on the complainant's lips. Due to the pain he felt the complainant started screaming but the appellant ordered him to keep quiet. As a result, the complainant suffered severe burns on the palms and lips.

The appellant took the complainant to Natisa Clinic where she lied to the clinic staff that the complainant fell into the fire on his own.

It was only after teachers at his school had observed the burns and interviewed him that the complainant disclosed the offence leading to the school head reporting the matter to the police. The complainant was medically examined on 5 November 2009 and a medical report was then compiled. The doctor observed burns on both palms and on the lips and opined that although there was no potential danger to life or permanent disability likely to occur to the complainant, the degree of force used to inflict those injuries was very serious.

The appellant pleaded guilty to the charge.

She is a first offender who is married with four children. She vends vegetables realizing around R150 per month. She went to school up to Form 4. She had US$150 and P360 in savings and three goats and a donkey as assets. She said she was very angry at what the complainant had done, hence the punishment.

Following the imposition of the sentence alluded to above, on 24 November 2009, the appellant's current legal practitioner noted the appeal against the sentence on 4 December 2009. The gravamen of the appeal is simply that the appellant should not have been visited with an effective custodial sentence; instead, the trial court should have imposed a non-custodial sentence such as community service....,.

Regarding the merits or otherwise of the appeal it is trite that sentencing is the prerogative of the sentencing court and the Appellate Court is generally loathe to interfere unless there exists a clear injustice or misdirection.

In the instant case, while counsel for the appellant conceded in his oral submissions that the appellant's conduct was abhorrent, for a mother cannot abuse her child in that manner, he still contended that the sentence was harsh. The pith of his argument was that the appellant pleaded guilty, is a first offender, and if incarcerated no one will remain taking care of the children. He suggested that a sentence of 12 months imprisonment with half suspended on condition of good behaviour and the balance on condition of performance of community service will meet the justice of the case.

Counsel for the respondent maintained that the appeal be dismissed for lack of merit.

Section 4(1) of the Domestic Violence Act [Chapter 5:16] provides:

“…, any person who commits an act of domestic violence…, shall be guilty of an offence and liable to a fine not exceeding level fourteen or imprisonment for a period not exceeding 10 years or both such fine and such imprisonment.”

In his reasons for sentence, the learned trial magistrate said:

“The accused, although a first offender, perpetrated a gothic and barbaric crime that is viewed with indignation, contempt and abhorrence by the public. As a mother, she severely and undeservingly punished a 10 year old son by burning him on the palms and mouth for drinking a R1 worth sweet aid. Mothers are synonymous with love and care. Although a first offender, her behaviour is distinguishable. A fine will trivialize the offence. An option of community service, too, will be inadequate. A prison sentence, appropriately suspended on condition of good behaviour will meet the justice of this case. This is a serious offence…,. The fact that she is a mother to the victim aggravates this offence. A gaol sentence will be appropriate.”

It is pertinent to point out that the appellant was in fact taken through the community service enquiry. The learned trial magistrate cannot be faulted in his reasoning supra; that a fine or community service will trivialize the offence.

There is no jot of misdirection on his part.

Those of a rustic background would remember, with shivers, how rural women used to punish hens that would have “eaten their own eggs.” The women would take a piece of burning wood and burn the hen's beak until only a stump remained so that thereafter the hen's beak would not be able to peck and break the egg shell in order to drink the contents again.

The above scenario can be equated to the appellant's conduct in casu.

Her conduct was devoid of any maternal instinct in spite of the fact that she was the one to blame by leaving the complainant with no food for the day. Hunger, being not a good teacher of morals, got the better of the complainant and understandably so. How could a mother worth her motherhood cast away the cloak of maternity and brutally punish her own ten year old son in such a primitive fashion for such a miniscule infraction worth not even a teaspoon? As if that was not enough, the appellant felt no remorse and had to effrontery to tell fibs to clinic staff in an endeavour to sweep her dastardly act under the carpet.

What the appellant did contravenes section 53 of the Constitution. She subjected the son to torture, cruel, inhuman and degrading treatment or punishment. This case is not one of sparing the rod and spoiling the child. Section 81 of the Constitution confers on every child the right to parental care, protection from maltreatment, neglect or any form of abuse and the right to nutrition. By her conduct, the appellant sorely breached the complainant's Constitutional rights enshrined in the Bill of Rights....,.

Also, it matters not that if incarcerated the appellant's children will remain with no mother. They will remain with their father. After all, the complainant himself is now 16 years old. He is now a teenager and not a child. If it were in other societies, the appellant, for this domestic child abuse, would surely have been stripped of custody of her children for she certainly does not deserve custody after exhibiting such cruelty to the complainant.

There was no misdirection by the learned trial magistrate in the manner in which he assessed the sentence that he imposed upon the appellant. The sentence is properly deserved.

In the result, the appeal against sentence is without merit and is accordingly dismissed in its entirety.

HHH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

A lot of cases come before the courts in which a spouse will have invaded the private communications of another by going through messages and other communications on the other spouse's phone. This practice should be deprecated. It amounts to investigating or eavesdropping on one another.Usually, spouses who do this ...

HHH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

The accused, Madalitso Ranchi, a male adult, was charged with murder in that on the 25th of July 2015, at B37 Beatrice Location, Beatrice he had unlawfully and with intent to kill murdered his wife Pamela Muzondo, or realising that there was a real risk or possibility that death might result, had struck the deceased with an unknown object thereby causing injuries from which the said Pamela Muzondo died.

The accused pleaded not guilty. The essence of his defence was that he never intended to kill the deceased, but had lost control after finding her with a lover.

The State led direct evidence from two persons in its line of witnesses. The direct evidence came from Susan Unati Moyo the deceased's daughter and step-daughter to the accused. Stanford Bonde, the alleged paramour, also gave evidence.

The witnesses whose evidence was accepted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] included that of Laina Muzondo, the mother of the deceased, Ganizani Ranchi, the brother of the accused, Kudakwashe Hwari, a cousin of the deceased, and Dzingarai Brighton Mozorodze, a member of ZRP stationed at CID Beatrice.

The post-mortem report sworn to by Dr Mauricio Gonzalez was also admitted into evidence by consent.

It was not in dispute that the accused had killed the deceased. The core issue for determination at the trial was whether he had indeed done so out of provocation from discovering his wife's infidelity.

The State's evidence

Susan Unati Moyo: She is 11 years old. She told the court that the day in question was a Saturday morning (25th of July 2015), when her mother had been washing plates outside but had not finished. She had also started doing laundry but had not finished when she had been called inside the house by the accused.

She herself was playing outside with her young brother.

Whilst at the sink outside she had heard her mother cry out “maiwee”. She had not seen her mother come out of the house again. Her brother, who was feeling hungry, had gone to knock at the door. The accused had come to the door and had given them $50 to go and purchase food. They had bought biscuits and drinks. They had returned and had eaten outside. Thereafter, the accused had told both of them to go to their grandmother's house with specific instructions that they were to say that they had been sent there by Stanford Bonde. The accused told them that their mother had gone to work and had given them 50 cents to use on their way to their grandmother's. They had arrived towards sunset and she had told her grandmother as instructed to say.

In cross examination, she said she knew Mr Bonde as an elder at their church. He had not been a visitor at their house on either the Friday or the Saturday. She had last seen him at church the previous Sunday.

Stanford Bonde: His evidence was that he knew the deceased as a fellow parishioner at Living Word Citadel. He also knew the accused as the accused was, at one time, the pastor. The accused had later formed his own church after facing fraud charges for the double sale of Stands. He had elected to form his own church rather than face censor by the church.

On the 27th of July 2015, Laina Muzondo, the deceased's mother, had come to his house looking for him. She had stated her grandchildren had come to her house on his instructions and wanted to know if he had seen the deceased on that day that he had instructed the children to come. He had told her that he had not sent the children at all to her and neither had he seen the deceased on the day in question. He had referred her to the accused's mother's house. She had returned with the accused's mother and two of the accused's brothers. They told him that they had gone to the deceased's residence and had broken the door and what they had found had been a letter purportedly written by Pamela to him. He had told them that it was not possible for Pamela to have written such a letter unless she had lost her mind.

The contents related to his coming to visit her at night on the pretext of going for prayers. The letter also related how she had had to abort his child and yet he was no longer coming to visit.

He told the court that he had never had any relationship with the deceased and therefore found the letter strange and unlikely to have been authored by the deceased. He had told the relatives as much. He had last seen her on the 19th of July 2015 at church.

When shown the letter, he had suggested that the police be contacted instead of wasting time.

On the 28th of July he had been summoned to the police station by the police. That same afternoon he had, again, been visited by Laina Muzondo and the deceased's sister who wanted an explanation regarding the letter and if he knew where Pamela was. He had suggested that, for the sake of progress, it would be best to ask the children, in his presence, who had really sent them since he had never done so. They had advised him that they would return as they needed to go to the house to fetch the children's clothes as the children had come to their grandmother's without carrying any clothes.

He had gone to Laina Muzondo's house later that day and Susan Unati Moyo had been called. When asked where her mother had been on that day Susan had narrated the events of that day which have already been captured. She had then also revealed that they had been sent by the accused and his admonition that they were not to reveal that he was around.

They had proceeded thereafter to file another report at the police station. The police had come to his house the following morning and they had gone with him to the deceased's residence together with the accused's brother. As the place had a foul smell; in tracing its source, the police had requested the bed to be lifted. That is where the deceased's body had been found - in a dish. He had also spent that night in detention under investigation but had been subsequently cleared.

As regards the letter, he told the court that the police had established from the accused, once he had come back into the country and had been arrested, that he was the one who had in fact authored the letter from a page taken from his own diary. It had also been established that it was the accused's handwriting. Asked, in cross-examination, whether he had ever visited the accused's house, he explained that he had done so at the time when the accused was still their pastor, when, as a church elder, he and others used to pass through the pastor's house to collect chairs.

Core issues from the admitted evidence

Of significance, from Laina Muzondo's admitted evidence, was that when she had checked with her neighbours, after learning that the deceased had not gone to work on the 28th of July, they confirmed having last seen the deceased on the 25th of July 2015 which was a Saturday.

Of importance, from Ganizani Ranchi's evidence, was that when they went into the house on the 28th of July, after the deceased had failed to show up for work, the only suspicious thing they had found had been the letter purportedly written by the deceased which was then taken by the accused's brother.

From the admitted evidence of Dzingirai Brighton Mazorodze, from the Criminal Investigation Department, was that after the discovery of the body, on 30 July 2015, he had searched the whole house and observed blood stains on the door wall, drops of blood from the door wall on the floor to the bed, and stains of blood on a cardboard box used as a washing basket.

From the admitted evidence of Dr Mauricio Gonzalez was the crucial fact that the deceased had died from haematoma and head trauma due to assault.

The Accused's Evidence

The accused narrated how he had returned home on Friday the 24th of July 2015 from Malawi where he had travelled for three weeks to preach. He would go often to Malawi. He had knocked but had received no answer. The door was unlocked and he had opened. He heard voices inside. The children were sleeping. He had proceeded to the bedroom where he had found a half-clad Stanford Bonde sitting on his bed who had his trousers on but had no shirt. His wife wore a short nightie and no panties. Stanford Bonde had tried to talk to him but he had just stared at his wife in disbelief while Stanford Bonde had taken his shirt and had walked out.

He had checked on the floor and observed a used condom. He had asked his wife what had taken place since he loved her very much. She had insisted on asking for forgiveness.

In anger, he had asked her to leave and go to the dining room. She had insisted on explaining herself and that is when he had pushed her hard through the door opening which had no door frames but sharp brick edges. She had hit her forehead and had fallen backwards but facing upwards. She was bleeding.

He had washed the wound using water from a big green tub that his wife kept in the bedroom. He had also removed her night dress intending to take her to hospital. He had dressed her in her underwear, a black skirt and blue T shirt. He had tried to use a towel to stop the haemorrhage but she had continued bleeding. All the while she had groaned in pain before taking her last breath and falling down dead.

He had thought of waking the children but had realized it was not necessary. Thereafter, he had mopped the blood on the floor so that the children would not see it as they were in the habit of coming to the bedroom. He had taken the body and put it in the green tub because he did not want the children to see the body when they woke up the following morning. He had put the green tub under the bed and had slept in the dining room.

The children had woken up the next morning without noticing what had happened. He had told Susan Unati Moyo that her mom had gone to work.

At around 11am, her young brother had come complaining of hunger and that is when he had given them money to go to the shops. When they came back, and had eaten, that is when he had told them to pack their bags and go to their grandmother's house. He admitted telling them to say they had been sent by Stanford Bonde because their grandmother thought he was in Malawi. He had locked the door after their departure and had proceeded to Malawi.

His father had called him in Malawi to say he should come back as something had happened to his wife but had not told him his wife was dead. By then, of his own volition, he had made up his mind to return and turn himself in so the law would take its course.

Upon his return, on the Thursday night, he had been intercepted by armed police on his way home, at around 1am, to tell his parents what had transpired. He had been locked up and forced to write a statement.

On the Saturday he had been taken for indications all the while with the police telling him what to say.

The accused told the court that they would even stomp on his foot when he refused to do their bidding particularly as regards what they wanted him to say with respect to what he had used to assault the deceased. He had refused to sign the documents.

Suffice it to state they were not part of the record.

In cross examination, he was challenged on the variance of his story with that of the witness, Susan Moyo, on the crucial score that the deceased had been at home on Saturday morning and that she had washed some dishes and done some laundry, which tasks she did not complete because he had called her inside.

He insisted that the incident had taken place on Friday night when he returned and that the children were asleep.

On why the children had not seen Stanford Bonde on either the 24th or the 25th, his answer was that they were fast asleep on the 24th when the incident occurred.

Asked why the deceased would have written a letter to Stanford Bonde if she had been sleeping with him on the night of the 24th, the accused stated that the letter had been written a long time ago when they were in love.

He had not queried the evidence-in- chief by Stanford Bonde that the police had unearthed that the accused had in fact written the letter and this was put to him.

When it was also put to him that he had used an unknown object to assault his wife, he stated that he had just arrived and would not have had a chance to find a weapon.

Additionally, when it was put to him that he was not provoked and that the extramarital relationship was in his mind, he maintained that he did not appreciate what he was doing when he pushed the deceased and that he only came back to his senses later on. He was insistent that the adulterous act was something that he had seen with his own eyes.

On the inconsistency of his conduct with that of an innocent person – that is hiding the body; telling the children to lie; and then fleeing to Malawi, his explanation was that he had been gripped by fear of his in-laws, the police, and what neighbours would think of him. Primarily, he feared being attacked and another death ensuing.

The Closing Submissions

The State argued that the evidence of its witnesses should be preferred over that over the accused as the latter had not been a credible witness in his evidence. Moreover, he had been shown to have lied on two issues – namely, telling the children not to mention he was home on the day he sent them to their grandmother and also as regards the letter that had been found in the house which the police had unearthed had been written by himself.

In addition, no condom had been found by the family members who searched the house or by the police to lend credence to his version of events and yet they had found his letter which he had left for all to see - on top of the sub-hoofer.

The State further argued that the evidence of Susan Unati Moyo, as a child witness, had been given in an intelligent and credible manner. [S v Moyo HH236-16; S v Sibanda 1994 (1) ZLR 394 (S)].

Counsel for the State further argued that the accused was not, at the time, suffering from any acute emotional stress or diminished responsibility and that he knew exactly what he was doing. He relied on the case of S v Gambanga 1997 (2) ZLR 1 where the accused had been found to have known what he was doing under similar circumstances when he killed his wife. He had been found guilty of murder with constructive intent.

He further argued that the accused has the burden of proving diminished responsibility. [S v Jafta Dube 1997 (1) ZLR 229 (H)].

No medical evidence had been placed before this court to show that the accused was suffering from mental disturbance at the time.

Counsel for the State also argued that, from his conduct, the accused had foresight of the real possibility of death and he had acted recklessly regardless. [S v Mugwanda 2002 (1) ZLR 574 (S); S v Gumbi 1994 (2) ZLR 323 (S)].

In the final analysis, he argued that neither provocation nor diminished responsibility had informed the accused's actions in this case. He therefore urged the court to find a verdict in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Counsel for the accused, on the other hand, emphasised, in her closing submissions, that the accused had no intention to kill and that he was seriously provoked and lost his senses.

She argued that the evidence of Susan Moyo should not be relied upon as she was susceptible to being coached to lie and could again have lied to the court in the same manner she had done to her grandmother. She emphasized that the child's evidence pointed to the fact that the accused and the deceased lived peacefully, and, as such, the accused would not kill his wife for no reason.

Counsel also highlighted that Stanford Bonde, in his evidence, had not portrayed the accused as a bad person other than the fraud charges that he had faced at one time. Furthermore, she argued that the fact that Stanford Bonde had indeed visited the accused's home meant that it could not be ruled out that he had done so on the night in question.

She put forward that the State was ultimately relying on circumstantial evidence which had to be treated with caution. S v Mlambo HH43-16.

On intention, she argued that any reasonable person would not have foreseen death ensuing. S v Tazvinga 1968 RLR 121.

In her view, there was also reasonable doubt as to whether any weapon had been used. The fact of putting his wife's body and then hiding it was emphasized as indicative of his temporary insanity as no reasonable person would do that. She maintained that had it not been for the adultery, he would not have killed his wife.

In the final analysis, she argued that the accused should be found guilty of culpable homicide and not murder.

The Legal Position

Our Criminal Law (Codification and Reform) Act [Chapter 9:23] recognises provocation as a partial defence to a murder charge in section 239 whereby;

“…, the person shall be guilty of culpable homicide if, as a result of the provocation -

(a) He or she does not have the intention or realisation referred to in section forty-seven; or

(b) He or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self control.”

The defence, as couched, addresses the subjective element under (a), in terms of what the accused actually intended. It further addresses the objective element under (b), in the sense of loss of control where an ordinary person would have lost such control.

When the defence is used in circumstances such as this, where an accused has killed his wife due to adultery, the assumption is that a reasonable person would have behaved likewise hence the justification for a finding of culpable homicide instead of murder.

The accused also relied on diminished responsibility which is provided for in section 218 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

The gist of the provision is that if, at the time of committing a crime, the capacity of a person to appreciate the unlawful nature of their conduct or to act in accordance with that appreciation is affected on account of mental or emotional stress a court can take this into account in imposing a sentence. However, where the acute mental or emotional stress is self-inflicted, then the court may disregard the assertion that responsibility was diminished.

Given that the only witness is dead who could speak conclusively to the fact of provocation apart from the accused, who so asserted, the critical issues in this case was therefore whether the State disproved provocation beyond a reasonable doubt or whether this was simply a case of murderous violence.

Legal and Factual Analysis

There was clearly a conflicting version of facts between what the State witnesses said in relation to this matter and the accused's own narrative of the events leading to the fateful killing.

The ascertainment of the truth therefore has to emerge from an analysis of the testimonies that were heard by this court.

In our view, there was nothing deficit in the evidence of Susan Moyo who told this court that her mother was alive and well on Saturday morning of the 25th of July 2015.

Whilst she was nine years old when the fateful events of that day occurred, she was able to tell the court the exact circumstances of how she and her brother had ended up at her grandmother's. There was no reason to discredit her evidence particularly since it was never in contest that the lie that she had told her grandmother about being sent by Stanford Bonde had been one crafted by the accused himself. He had impressed upon her to tell that lie which the accused himself admitted.

He, rather than the witness, Susan Moyo, is the one who showed the propensity for dishonesty.

If there was anyone's evidence to be suspicious of due to the likelihood of lying, it would be that of the accused and not this witness.

As a school going child she had the capacity to relate fully well what she remembered of that day when the accused sent them to their grandmother's house. There is equally a shift away from disbelieving the evidence of children. They have largely been shown to be truthful under optimal circumstances. Empirical research has also shown that the cognitive ability of children of school-going age is just as credible and reliable as that of adults especially if obtained under optimal conditions. See FIONA RAITT, Judging Children's Credibility: Cracks In The Culture of Disbelief or Business As Usual 744, New Criminal Law Review Vol.13 No.4 Fall 2010…,.

This court was satisfied that Susan Moyo told the court what she knew. There was no accused to bring undue pressure upon her to lie this time since he has been in custody. Furthermore, counsel for the accused cross-examined her respectfully and compassionately in that rare instance where the defence, in relation to a witness from the other side, genuinely confines itself to truth-seeking. There was observably no casting aside of this purpose just for the sake of making life unbearable for the witness as is often the case.

Furthermore, her evidence that her mother was alive on Saturday the 25th was also corroborated by the admitted evidence of Laina Muzondo - which evidence was not challenged.

As stated, in a quest to find her missing daughter, she had established that neighbours had last seen her on the 25th of July 2015 which was a Saturday. The accused's evidence that he had found her with Stanford Bonde on the night of Friday the 24th when he returned from Malawi and had killed her for that reason, on that Friday night, was therefore not true. There was no Stanford Bonde who caused his provocation on the night of the 24th.

We also found Stanford Bonde's evidence to be credible that he had last seen the deceased at church on the 19th of July when she had attended Mass.

Susan Moyo had also stated as much as regards the last time she had seen Mr Bonde.

His evidence, that the police had established that the letter purportedly written to him by the deceased had in fact been written by the accused, was also not challenged when he gave this evidence. If that had not been the case one would have expected that his counsel would have spared no prisoners in revealing the truth at the time Mr Bonde was on the witness stand. Moreover, we took note of the fact that he had been thoroughly investigated by the police and even detained overnight before being found innocent.

Stanford Bonde was also clear in his evidence that the children's grandmother had told him that the children had come without any spare clothes, yet the accused, in his evidence, crafted a story where the children had packed their clothes before he sent them away. Susan Moyo's evidence was also clear that what the accused had given them was 50 cents to spend on the way to their grandmothers. She did not mention being let into the house to pack any clothes because that never occurred. He clearly had not wanted them in the house after the fatal scream that Susan had heard on that Saturday morning.

In addition, the admitted evidence of the police officer who attended the scene was to the effect that the search of the room which had been conducted upon discovery of the body had revealed bloodstains. No condom was found. There was equally no mention of a stained night dress which the accused says he removed from the deceased when he dressed her in preparation for hospital.

Furthermore, in support of the State case that the deceased had been assaulted by the accused was the post mortem report which was equally unchallenged as evidence and which clearly stated that the deceased had suffered head trauma due to assault.

For whatever reason the accused assaulted the deceased; it was certainly not because he was provoked by Stanford, because there was no Stanford Bonde at his residence on the 24th of July as he alleged nor on the 25th of July when his wife was last seen alive by her children.

This court was satisfied, beyond a reasonable doubt, that the narratives of the State witnesses were true in their essential features.

The accused's disposition for truth-telling, on the other hand, was particularly lacking.

Right from the onset, after committing the murder, he put in motion his own version of “how to get away with murder” by crafting a series of lies. He has clearly continued to imagine, in his head, that if he continues to regurgitate falsehoods they might just become believable.

His explanation, that he returned to turn himself in, was obviously false as he headed nowhere near a police station when he arrived. He had returned because his father had called him to tell him something had happened to his wife. It would have been strange for him not to come as he had crafted a lie that he had been in Malawi all along. The fact that his father had not mentioned that he was at all under suspicion made him believe he had gotten away with murder.

The accused's account of his wife's infidelity on the night he says he returned from Malawi was also not only strained but was outrightly implausible.

He had allegedly simply stared at his wife as Stanford Bonde, who had tried to speak to him, put on his clothes before calmly walking out of the house only for the accused to then lose his cool when his wife “tried to explain”.

It is also implausible that all the anger he then unleashed, and his wife's moans and groans from pain, would have happened without awakening any of the children whom he said were only a door away.

His whole story of dressing the deceased up to take her to hospital was simply concocted, in our view, to explain away why she was not found in her night dress, if, as he said, the murder had happened on the night of Friday the 24th.

The accused crafted a rosy picture of his marriage to the deceased. It was hard to see why she would have been unfaithful to him if life was as rosy as he depicted.

The State evidence having shown, conclusively, that there was no act of infidelity that the accused stumbled upon, as he claimed, this court is only left to join the pieces, based on socio-legal research, in order to understand what may have been the trigger for the violence.

In Zimbabwe, research has shown that after squabbles about money, jealousy is the second most important cause of violence against women; A ARMSTRONG, Culture and Choice: Lessons from Survivors of Gender Violence in Zimbabwe (Harare, Speciss Print “N” Mail, 1998)…,.

It arises from possessiveness and sexual jealousy or challenge to male behaviour.

This court can only surmise that the jealous demon in him got the better of him that day. At most, it would appear that the accused may have had his own suspicions in his head about his wife's fidelity since, by his own admission, he frequently travelled to Malawi. But suspicion alone can never be the basis of using provocation as a defence for fatally killing one's spouse.

In any event, and this is the crucial point, the use of the provocation defence in a situation where a spouse is killed because of adultery would be unlikely to withstand survival under our present Constitution. This is because section 52, which accords the right to personal security, categorically prohibits violence at the hands of both private and public actors.

“52 Right to personal security

Every person has the right to bodily and psychological integrity, which includes the right —

(a) To freedom from all forms of violence from public or private sources;”…,.

The crucial import of this provision is that by zeroing in equally on freedom from all forms of violence from public as well as private sources, the result is protection from violence within family and domestic spheres as private sources of violence.

The Constitution, as the highest law of the land, embraces a zero tolerance for violence in all instances as a fundamental human right. It is not negotiable.

The domestic sphere happens to be a major source where women in particular encounter the most violence. For an understanding of similar reasons of women's vulnerability when they threaten to leave or at the point of separation or thereafter see also SUE BANDALI, Provocation - A Cautionary Note 22 J.L. & Soc'y 398 1995…,.

It would therefore be ludicrous to then allow a man who kills his wife, due to so claimed infidelity-inspired rage, to get away with murder by harnessing the defence of provocation in order to be treated with compassion by reducing that murder to culpable homicide.

Whatever its historical, biblical, or evolutionary aspects, the use of the defence of provocation in instances of spousal killing is increasingly seen as flawed. For a discussion of the evolution of the defence and its problematic context in present times see K..J. KESSELRING, No Greater Provocation? Adultery and the Mitigation of Murder in English Law, 34 Law & Hist. Rev. 199 2016.

It is regarded as gender biased and archaic not just because of its proprietary and possessory underpinnings but because it does not stand up to logical scrutiny that the reaction of killing is necessarily that of the reasonable person. See "Good Practices in Legislation on 'Harmful Practices' against Women," 2009, 19-20. http://www.un.org/womenwatch/daw/egm/vaw legislation 2009/Report%20EGM%20harmful% 20practices.pdf.

In fact, in our context, the claim for adultery damages, even though equally archaic in its possessory and proprietary undertones, remains recognised often with aggrieved men and women demanding hefty damages from the perceived wrongdoer. See Basil Mukururu v Derick Vori HH174-16; Muhwati v Nyama 2011 (1) ZLR 634 (H); Jhamba v Mugwisi 2010 (1) ZLR 124 (H).

As has been further observed, throughout the world, most married couples encounter insults, suspicions, and confessions of infidelity by their spouse, and yet only a small number resort to killing.

“Drawing on the work of psychologists, one set of commentators has asserted the fallacy of the notion of loss of control:

Angry impulses do not so overwhelm us to the point that we become enslaved by them. We are endowed with a high level of choice concerning how we act - even in relation to the most provocative forms of conduct. Those who lash out when confronted with a distasteful experience do not respond in this manner because of an absence of a meaningful choice. They do so because they elect to do so….,.

[T]he desire to ensure that a loved one does not die in pain (resulting in an act of mercy killing) might be just as powerful as the anger stemming from a confession of adultery. The latter should enjoy no special privilege in the law…,.

[Loss of control requiring that the accused was) 'so subject to passion as to make [them] not master of [their] mind' [is] more akin to a state of automatism than one with the requisite mens rea for murder (NEAL & BAGARIC 2003:247-248)”.

Zimbabwe is a signatory to the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) under which its specific obligations, under Article 2, are:

“Article 2

…,.

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.”

Clearly, insofar as the defence of provocation is available as a partial defence in situations of spousal-killing for infidelity, the Criminal Law (Codification and Reform) Act [Chapter 9:23 (the Criminal Code) needs to be clarified with a view to harmonizing it with the Constitution.

The adultery defence for crimes of passion ought to be categorically removed from the ambit of provocation because it increases women vulnerability to violence given that women, and not men, are predominantly, though not exclusively, at the receiving end of crimes of passion.

In fact, the recommendation of the UN Division on the Advancement of Women is that both “honour” and adultery be removed as defences for premeditated killings or “crimes of passion”. (Extracted from GRAEME COSS, The Defence of Provocation: An Acrimonious Divorce from Reality 18 Current Issues Crim. Just. 51 2006-2007…,.).

Our finding is that the accused killed the deceased, not because of any provocation stemming from adultery, but because of his own fears inspired by jealousy. In flinging her against the wall and assaulting her as the medical report clearly confirmed, he foresaw that death would result and had proceeded regardless.

We find the accused guilty of murder in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]....,.

In mitigation the accused is said to be a first offender and was a breadwinner before the commission of this offence.

In aggravation, the State emphasised the lack of regard shown for the sanctity of life. Whilst bearing in mind the need to individualise his sentence, the sentence called for was one that would send a clear message against the tolerance of gender-based violence in domestic settings. This was said to be more so in view of the increase of murders taking place in this context.

As this court found, the accused was guilty of reckless murder.

There has been a wanton loss of life which has resulted in untold pain for the deceased's family. The deceased was only 34 years old when her life was cut short at the hands of the accused. There has been no remorse. The children have lost their mother and will have to go through life with the trauma of knowing that she died at the hands of the accused – a man they were supposed to look up to as their role model.

Also lost was someone's daughter, a sister, an aunt, and a friend to many.

What aggravates their loss is that the accused was a pastor who was supposed to be an example to others on temperance and virtue. The appropriate sentence in this case, which fits the offence and the offender, is 20 years.

The accused is accordingly sentenced to 20 years imprisonment.

HHH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

On 26 February 2007, the legislature gazetted the Domestic Violence Act [Chapter 5:16]. The rationale for enacting the said Act was to protect and also afford relief to victims of domestic violence following the upsurge in such cases.In this court's view, legislation and the courts, alone, cannot stop or tame ...

HHB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

The appellant, a parent at Mawaba Primary School in Bulawayo, was convicted by the Magistrates Court sitting at Western Commonage, on 21 October 2015, of contempt of court in contravention of section 182(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

He was sentenced to 9 months imprisonment of which 4 months imprisonment was suspended for 5 years on condition of future good behaviour.

He was aggrieved by that outcome and noted an appeal to this court against both conviction and sentence.

In respect of conviction, he took the view that the court a quo erred in returning a verdict of guilty when the evidence did not establish that a crime had been committed. The decision of the court a quo was so grossly unreasonable in its defiance of logic that a reasonable court could not have possibly arrived at it. The decision exhibits bias on the part of the court a quo against the appellant. The decision infringes upon his constitutional right to freedom of speech and association.

Regarding sentence, the appellant challenged it on the basis that it induces a sense of shock and is out of line with the general sentencing trends for the offence in question especially as the justice of the case called for the imposition of a sentence other than a custodial one.

On 6 November 2014, the appellant, as first respondent, had appeared before a magistrate sitting at Western Commonage in an application for a binding over order made by Morrinah Dhlamini, the headmistress of the school, in terms of section 388 of the Criminal Procedure and Evidence Act [Chapter 9:07] against the appellant and three other people. The court issued a Peace Order against them to wit;

“It is ordered that 1st, 2nd and 3rd respondents:

1. Should keep peace towards applicant.

2. Should not disturb school activities at Mawaba Primary School.

3. Should not hinder the applicant from running or exercising her duties as the headmistress of Mawaba Primary School.

4. Threaten applicant in any way.

4th respondent;

5. To keep peace towards the applicant.”

While that court order was still operational, the applicant attended a meeting at the school convened by the headmistress for parents on 23 September 2015. The State alleged that during that meeting the appellant ignored the agenda of the meeting and started to air his grievances complaining bitterly as to why himself and the other three persons had been insulted by being taken to court. He allegedly insulted the chairperson. This led to a chaotic situation as a result of which the meeting was aborted.

For his troubles, the appellant was dragged before the Magistrates Court for breaching section 182(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Penal Code). Paragraph (e) of subsection (2) provides that a person may impair the dignity, reputation, or authority of a court by knowingly contravening or failing to comply with any order of a court which is given during or in respect of judicial proceedings and with which it is his or her duty to comply.

It is trite that the subject has a duty to bow to the decision of the court, and, where there exists a remedy, to then pursue that remedy in court. This is proper for the administration of justice. The dignity of the courts of law should never be demeaned or undermined.

The State led evidence at the trial from Morrinah Dhlamini, the headmistress at Mawaba Primary School, who told the court that she is the one who convened the meeting. During deliberations, the appellant started shouting at the chairperson saying he should tell the parents why he and his colleagues had been taken to court for a Peace Order. He told the chairperson that he should not hide behind the Bible. In the process, the appellant disrupted the meeting which could not continue after that. According to Morrinah Dhlamini, the appellant took a tangent casting aside the agenda to complain about the Peace Order that had been taken against him and others.

Nkosana Mazibisa, who was chairing the meeting, also testified on behalf of the State. He stated that during deliberations the appellant deviated from the field of discourse and started attacking him saying he was lying to parents and accusing him of having dragged him to court. That way he violated the Peace Order.

Counsel for the appellant submitted that the appellant was entitled to attend the meeting as a parent and made contributions during the meeting at the invitation of the chairperson. For that reason he did not commit an offence.

I do not agree.

The evidence showed that the appellant was not interested in the items on the agenda but was bent on fighting the court order which had been made against him. What he said was not on the agenda. He verbally abused the chairperson accusing him of being a liar.

This is a meeting which had been called by the headmistress of the school with a Peace Order in her favour. His conduct was disruptive and had the effect of disturbing a school activity. He was contemptuous of a court order made against him. We are therefore unable to find any misdirection on the conviction which was proper as the State managed to prove its case beyond a reasonable doubt.

It is however the sentence of imprisonment, without the option of a fine, which was a misdirection.

The concession made by counsel for the State, that the failure by the court a quo to consider any non-custodial sentence because contempt of court is a serious offence was a misdirection of monumental proportions, was properly made.

The moment the court a quo settled for an effective imprisonment of five (5) months, that brought the matter within the community service grid. The court was therefore required to embark on the exercise of inquiring into the suitability of community service as an option. It had no discretion in that regard. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Mbizvo and Others HB258-16.

In addition, the penal provision in section 182 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a fine not exceeding Level 6 or imprisonment.

Subsection (1) of section 182 of the Criminal Law (Codification and Reform) Act provides:

“Any person who, by any act or omission, impairs the dignity, reputation or authority of a court —

(a) Intending to do so; or

(b) Realizing that there is a real risk or possibility that his or her act or omission may have such an effect;

shall be guilty of contempt of court and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.”

This court has repeatedly stated that where the statute provides for a sentence of a fine or alternatively imprisonment, the court must give serious consideration to the option of a fine and reserve imprisonment for the most serious infractions or repeat offenders. See S v Zuva 2014 (1) ZLR 15 (H)…,; S v Chawanda 1996 (2) ZLR 8 (H)…,; S v Sikhosana and Others HB25-17.

The appellant is a first offender who is married with three children. He should have been sentenced to a fine.

We have been told that he was in prison for a period of two weeks before being granted bail pending appeal. Taking into account all those factors, it is ordered that:

(1) The appeal against conviction is hereby dismissed.

(2) The appeal against sentence is upheld and the sentence of the court a quo is quashed and in its place is substituted the following sentence:

“The appellant shall pay a fine of $20, or, in default of payment, 10 days imprisonment.”

HH955-15 : SAMUEL UNDENGE vs BONGANI UNDENGE
Ruled By: MAKONI J and MWAYERA J

Section 25 of the Constitution, on the Protection of the Family, reads:“The State and all institutions and agencies of Government at every level must protect and foster the institution of family, and, in particular, must endeavour, within the limits of the sources available to them, to adopt measures for -(a) ...

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.

The appellant was charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that on 23 October 2011, at House Number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011.

The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight.

He was convicted after a full trial and sentenced to 13 years imprisonment.

The State's case was based largely on circumstantial evidence.

The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife, Nyasha Tsopotsa (Tsopotsa), and Sekai Guramatunhu (Guramatunhu), also a police officer.

The evidence of Tawanda Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased's. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap.

During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased's room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased's room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased's body. The deceased said to the appellant words to the effect: “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital.

The witness was found to be an honest, impressive, and reliable witness in the assessment of the court a quo.

The second witness, Nyasha Tsopotsa's evidence was to the effect, that, as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother, I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon's father!” a reference to the witness husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased's doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill-treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased's room.

The witness was instructed, by her husband, to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased's bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left.

As with Tawanda Miti, the court a quo was impressed by the witness demeanour. It found that her evidence was largely corroborative of that of Tawanda Miti. The court a quo also noted that the witness evidence, that the deceased accused the appellant of persistent harassment, and further said that the appellant ought to have finished her off, was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness.

Sekai Guramatunhu was the State's third and last witness.

On the night in question, at around 2:00 or 3:00am she was at the police station when Tawanda Miti entered the charge office with the appellant. After Tawanda Miti made a report to her she went outside to where Tawanda Miti's vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant's utterance was because the deceased was in pain.

The defence applied for discharge at the end of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State consented to the application.

The court a quo had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a prima facie case that the appellant had to answer.

In its ruling, the court a quo stated, inter alia:

“In short, the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.”

The appellant's evidence was to the following affect:

The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011, he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated.

When asked what sort of conversation he had with her, he said:

“I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her….,. They are two of my brother's sons….,.

I then advised her, that, by going to the bars like what she was doing, these young men were actually seeing them (sic), and, as such, was causing a lot of embarrassment….,.

She was silent during the time that I was telling her that.

But, she suddenly got up and said that she was going to set herself alight….,.

During the time that she was making that utterance she was actually making the way to the stove that was located next to the bed….,. It was a pram (primus) stove that normally uses paraffin. I had eventually bought that paraffin stove for use during the time that there will be no electricity….,. She suddenly got up, grabbed the stove, and poured the paraffin on herself….,. She let go the stove and she quickly grabbed the matches.

It was during the time that I quickly grab (sic) (grabbed) her by both hands as I was afraid that she might strike the matches. I then kept a firm grip on the hand holding the matches in order that she will not be able to lit (sic) (light) the matches. I took the matches from her and placed it in my pocket….,.

I then asked her why she wanted to set herself on fire….,.

She did not respond and she went back and sat on the chair and I sat back on my chair.

I then asked her why she wanted to set herself on fire and that I was just reprimand(ing) her not that I no longer loved her….,.

She did not reply.

I then kept on telling her to desist from her behaviour and that I was going to continue maintaining her as I have (sic) been doing before. Thereafter, she first remained silent. I then started to contact her aunt and her sisters; unfortunately I failed to get through to them. I continued sitting down trying to cool her down whilst advising her to desist from her behaviour.

It was after some time had lapsed, whilst I was trying to contact her aunt and her young sister and I was failing to get through. So we sat for quite some time….,. I was afraid to leave as I thought that maybe she might do something.

It was after we had settled for quite some time that she might have noticed that I was dozing as it was during the night that she took advantage because I just suddenly heard the sound of a chair being moved. When I got up she had already stood up and rushed to get another box of matches that I had not noticed.”

The appellant was asked how much time had elapsed between the time that she poured paraffin on herself and the time when she rushed to get another box of matches. His response was: “I think about 30 minutes when I was talking to her.”

He proceeded to state as follows:

“When I heard the sound of the chair and I got up he (sic) (she) was already stood up (sic) and picked up the matches box (sic) and she then struck the matches.

I also assumed, that, because of the time that we had spent after she had poured paraffin on herself that maybe it might have vapoured off. She actually directed the flame of the match on the bottom but it failed to catch and she put it under her arm and she then caught the fire….,.

She then screamed whilst advancing towards me….,. She appeared she actually wanted to grab me by the neck, but she missed; then she grabbed me by one of my hand(s) on the upper arm. During the time, she was now on fire. She actually held me in an indication that she did not want to let me go (sic).

It was then that I also caught the fire such that I also suffered injuries.

I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tape (tap) so that I put out the fire. She left hold of me as we were by the door and she was now in front. When we got to the tap, I instructed her to kneel down; I opened the tap and there was now water that was being poured on her head (sic) and all the body.”…,.

It is opportune to briefly digress at this stage and take note that in his confirmed warned and cautioned statement the appellant did not make any mention of having dozed off. He said that after setting herself on fire the deceased embraced him and he opened the door whilst she was so embracing him. He stated, inter alia:

“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 (sic) and struck a match stick 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 tape (sic) where she poured some water on her. (sic) I followed her to the tape, (sic) helped her to extinguish the fire. I then went into the house to extinguish (the) 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.”

The appellant further stated, in his testimony before the court a quo, that, after putting out the fire, he rushed towards the veranda where Tawanda Miti gave him a bucket which had water in it and told him to put out a fire that was burning inside the deceased's room. Inside the room, he saw something that was burning on the floor. It appeared to be a skirt, and he poured water on it thereby putting out the fire. There was another fire burning at the spot where the deceased had poured paraffin on herself. After putting out the fire in the room he went outside, and, in his words, he found the deceased “telling Miti and others that I had actually poured paraffin on her and set her on fire. But, I actually denied that and advised that she had done that to herself. But, after I had advised her that I am not the one who had poured paraffin on her, she then kept silent on that aspect.”

The appellant was asked how many minutes elapsed between the time that he put out the fire on her at the tap and the time that he found her alleging to Tawanda Miti, and others, that he had set her on fire. His answer was: “I think the incident could have taken about five minutes.”

He stated that when she was making the allegation she was no longer on fire as he had doused it.

It was also the appellant's evidence, that, during the time that the deceased was on fire and was crying out, he could not make out what she was saying.

Under cross-examination, the appellant said that the deceased called out to Tawanda Miti after he had put out the fire that was burning her and as he was putting out the fire in her room. He said that the deceased only screamed out the words “oh mother, I am dying” after he had put out the fire on her.

He further said, that, the deceased was lying about everything that she was saying to Tawanda Miti and the others. He accepted that the deceased did ask him why he had not also burnt himself. He said that she was lying but he thought that it was no use arguing with her considering the state of her injuries at the time and his concern was to seek medical attention for her.

As to why he had not asked or caused the deceased to remove the clothes on which she had poured paraffin, his response was that he did not think of it and that he thought the clothes would dry up.

He also thought that the deceased made the utterances that she made against him in order to “fix” him because he had exposed her infidelity of being seen in bars with other men.

The court a quo convicted the appellant on the basis that the circumstantial evidence placed before it proved beyond reasonable doubt that he had committed the offence. It also found that the State witnesses were credible witnesses.

It concluded, that, the utterances made by the deceased constituted res gestae and were admissible against the appellant.

It was the court a quo's view that the issue was whether it was the appellant who had poured paraffin on the deceased and set her ablaze resulting in the injuries from which she died and that the absence of a post mortem report was not fatal to the State case. It concluded that it was the appellant who had poured paraffin on the deceased and set her ablaze.

The appellant raised the following five grounds of appeal against his conviction and one against sentence:

“1. The Court a quo erred in coming to the conclusion that the State had proved beyond any reasonable doubt the appellant doused Modester Chikaka 'the deceased' with the paraffin and set her alight in the absence of admissible evidence supporting that conclusion.

2. The Court a quo lost its path in concluding that the deceased died from the fire in the absence of a post-mortem report supporting that finding.

3. The trial court erred in mis-applying the doctrine of res gestae by admitting inadmissible hearsay evidence of the deceased in circumstances where the State had not satisfied the pre-requisites of such admissibility.

4. The Court a quo misapplied rules of circumstantial evidence and misdirected itself by making a finding that the appellant committed the actus reus of murder in the absence of any proved facts from which that inference could be drawn.

5. The Court a quo fell into error by summarily rejecting the appellant's defence as inherently improbable that it could not reasonably be said to be true in circumstances where the evidence before it supported such a defence.

AD SENTENCE

6. The Court a quo erred in imposing a disturbingly severe sentence in circumstances where the Court a quo had made (a) finding that appellant's mitigation was considerably weighty.”

ISSUE TO BE DETERMINED

The issue to be determined is whether or not the State proved the appellant's guilt beyond reasonable doubt.

Counsel for the appellant based his oral submissions before us on five points:

(i) The first, which he indicated was not covered in his heads of argument, was that the court a quo proceeded under circumstances of an irregularity; the irregularity being that the summary of the State case contained allegations on which no evidence was led by the State, that such irregularity was designed to undermine the appellant's defence and colour the court's mind and that both these aims were achieved.

(ii) From the other four points that he said were covered in his heads of argument, the second point was that, on the application of the proper legal test, it cannot be said that the defence put forward by the appellant in the court a quo was false, and, consequently, worthy of the rejection by the court.

(iii) The third point was that the cause of death was not established in the court a quo.

(iv) The fourth point was that the court a quo irregularly admitted inadmissible hearsay evidence and went on to found its judgment on such inadmissible evidence.

(v) The fifth and final point was that the requirements for a conviction based on circumstantial evidence were not met a quo.

With regard to the first point, the contention was that the State made damning but false allegations against the appellant on which no evidence was led. Specific reference was made to paragraphs 2, 3 and 4 of the Summary of the State case as reflected at p2 of the record of proceedings.

Counsel for the appellant particularly highlighted paragraph 3 which reads:

“The accused proceeded to take a paraffin stove which was in the room and poured the paraffin onto the deceased. He took a box of matches from his trousers pocket, lit one match stick and threw it on the deceased's body setting her alight.”

It is my view, that, if the court a quo convicted the appellant purely on the basis of what is stated in the State Summary, and not on the basis of the evidence that was placed before it, then it goes without saying that the conviction would be baseless and would not survive this appeal.

If, as alleged, the court's mind was 'coloured' and the appellant's defence 'undermined' by the averments in the State Summary, such should be discernible from a reading of the court's judgment as it would have no cogency on the basis of the evidence that was placed before it. In this regard, I also take it, that, by the use of the word 'coloured' the defence meant that the court a quo was unduly influenced, in a negative manner, to the prejudice of the appellant.

It is trite that an appeal to this Court is based on the record.

It is also trite that an Appellate Court will not interfere with the decision of a trial court or tribunal unless the trial court or tribunal fundamentally misdirected itself in arriving at its decision. It is trite that an Appellate Court will not lightly interfere with a trial court's factual findings.

It is common cause that the appellant's conviction was not based on direct evidence. There was only circumstantial evidence that was adduced before the court a quo....,.

It must not be overlooked that the onus on the respondent was to prove its case against the appellant beyond reasonable doubt.

Counsel for the appellant's second, fourth, and fifth points revolve around the issues of the application of the evidential rules relating to res gestae and to circumstantial evidence.

The circumstantial evidence is made up of different aspects of the events that took place as the incident unfolded. The deceased's utterances, the subject of the conflicting contentions regarding hearsay evidence, with particular reference to res gestae, form one of the weighty aspects, among others, that emerge from the evidence that was placed before the court a quo.

The admissibility of the evidence of those utterances has been hotly contested by the defence.

What clearly emerged from the evidence by the State witnesses, which evidence the trial court accepted, was that during the time that the deceased was on fire she called out: “oh mother, I am dying” and she also called out Tawanda Miti's name.

Soon after the fire that was consuming her had been doused, and as soon as she saw Tawanda Miti, who she had called out to, she told him (Tawanda Miti), and the others who had come out, that the appellant had poured paraffin on her and set her alight.

The defence's contention is that this was hearsay evidence of utterances that did not amount to a spontaneous exclamation of a statement at the time of the relevant event, which would, at common law, constitute res gestae.

The submission was made, that, the deceased had had ample time for cogitation in the five minutes that elapsed from the time that she was burning, attempting to put out the fire, running to the tap, and running back, and then making the allegation, such that whatever she said at that stage could not qualify as part of the res gestae.

The argument was that the spontaneity requirement was not met.

Counsel for the respondent, on the other hand, submitted that the court a quo decided that the deceased's utterances were res gestae because she had screamed out and footsteps were heard by the first and second witnesses and that immediately upon returning from the water tap she had accused the appellant of having doused her with paraffin and set her on fire.

He submitted that the court a quo cannot be faulted for its finding that the failure by the deceased to name the appellant, at the time that she was burning, cannot be held against her if regard is had to the fact that, at the first opportunity, when she was no longer on fire, she named the appellant as the culprit.

Furthermore, that this was in the presence of the appellant at the scene.

Counsel for the respondent cited the case of R v Andrews [1987] 1 All ER 513 in support of his argument as regards spontaneity in cases involving res gestae. In his heads of argument, he gave the following quote, purportedly from the case, but did not give the specific page at which it appears in the Law Report:

“The test used by the courts, in determining spontaneity, is not necessarily one of exact spontaneity that is defined with mathematical precision. It is sufficient to establish approximate or substantial spontaneity.”

It was his submission, that, the court a quo correctly observed that to fault the deceased for not mentioning the appellant's name at the time that she was on fire would be to take an armchair approach.

It was also his submission, that, it is necessary to consider the totality of the evidence adduced and ascertain whether there was a break in the chain of events. He referred specifically to p26 of the record where the following exchange took place between the defence counsel and the witness, Tawanda Miti, during cross examination:

“Q. How many minutes lapsed from the time you heard the scream and the time that you then saw the now deceased coming from the tap direction?

A. Judging from the events, it could be less than a minute.”

I need to point out, that, in my reading of the judgment in R v Andrews [1987] 1 All ER 513, I was unable to locate the quotation cited by counsel for the respondent.

I make note, at this stage, that, counsel for the appellant's comment on this English authority was that its full content was not captured in the excerpt quoted by counsel for the respondent.

He submitted, that, the uncaptured aspects are;

(i) Firstly, that, if a statement is made after the event, it ordinarily falls outside spontaneity.

(ii) Secondly, if the statement is to be received in evidence there is a mandatory procedure to be followed in the Supreme Court of Judicature after which a preliminary ruling must be made by the judge. Thereafter, evidence of the statement can be given.

He likened the procedure to a trial within a trial in which the court must deal with and answer what he referred to as the recurring question: “At what stage did this end?”

In casu, so he submitted, because the statement was said after the deceased had seen a third party, there are dangers that the deceased had had time for reflection.

In my reading of R v Andrews [1987] 1 All ER 513, I was unable to locate the part of the report that specifically stipulated or referred to the procedure that he referred to and which he likened to the procedure of a trial within a trial (if I understood his submission correctly).

The facts in R v Andrews [1987] 1 All ER 513, as summarised in the headnote, are as follows:

“The appellant and another man knocked on the door of the victim's flat and when the victim opened it the appellant stabbed him in the chest and stomach with a knife and the two men then robbed the flat. The victim was found some minutes later. The police and they arrived very soon after. The victim, who was seriously wounded, told the police that he had been attacked by two men, gave the name of the appellant and the name and address of the other before becoming unconscious. He was then taken to hospital where he died two months later. At the trial of the appellant, for murder, the Crown sought to have the victim's statement to the police admitted in evidence. The trial judge ruled the statement was admissible. The appellant was convicted of manslaughter. He appealed to the Court of Appeal, contending that the victim's statement was inadmissible under the rule against the admission of hearsay evidence. The appeal was dismissed and the appellant appealed to the House of Lords.

Held – Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the res gestae, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim's statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim's mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion.

However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim's statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence. The appeal would accordingly be dismissed….,. Ratten v R [1971] 3 All ER 801 applied. R v Beddington (1879) 14 Cox CC 341 overruled.”…,.

I however found the following useful exposition by LORD WILBERFORCE in Ratten v R [1971] 3 All ER 801…, (a case cited by LORD ACKNER in his speech):

“The person testifying to the words used is liable to cross-examination: the accused person…, can give his own account, if different. There is no such difference in kind or substance between what was said and evidence of what was done (for example, between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction or fabrication, where it exists, is, on the other hand, an entirely valid reason for exclusion, and is probably the real test which judges in fact apply.

In their Lordships opinion, this should be recognised and applied directly as the relevant test: the test should not be the uncertain one, whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters, as the time which elapses between the events, and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria.

As regards statements made after the event, it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must, in principle, be true of statements made before the event. The test should not be the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But, if the drama leading up to the climax has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

The expression 'res gestae' may conveniently sum up these criteria, but, the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges rulings.”…,.

His Lordship also referred to the case of O'Hara v Central SMT Co 1941 SC 363, where, at p381 the Lord President (LORD NORMAND) said that “there must be close association: the words should be, at least, de recenti and not after an interval which would allow time for reflection and concocting a story.” He further quoted LORD FLEMING, who, at p386, said:

“Obviously, statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth.”…,.

He further pertinently states, at p808f-g:

“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”…,.

And, at p809b:

“Facts differ so greatly that it is impossible to lay down any precise general rule: it is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but, whether this is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree that, amongst other things, he may take the statement itself into account.”…,.

Finally, at p808d, he stated as follows:

“…,. In an earlier case in the High Court (Brown v R (1913) 17 CLR 570) where evidence was excluded, ISAACS and POWERS JJ, in their joint judgment (at 597), put the exclusion on the ground that it was a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main narration but arising as an independent and additional transaction.”…,.

In Principles of Evidence, 4ed (Juta) the learned authors, SCHWIKKARD and Van DER MERWE, under the heading “Res Gestae Statements” state that the phrase res gestae does not lend itself to any meaningful translation but that the phrase has developed a meaning in the law of evidence and is succinctly stated by CHOO (In Evidence (2012) 292) as follows:

“Evidence of facts may be admissible as part of the res gestae if these facts are so closely connected in time, place, and circumstances with some transaction which is at issue that they can be said to form part of that transaction.”

Under the subheading “Spontaneous Statements” the learned authors state, that, the reasoning behind the admission of spontaneous statements was that despite their hearsay nature, they are the product of an instinctive response and therefore less likely to be an invention or deliberate distortion. Furthermore, for the statement to be regarded as spontaneous it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the “event” dominated the mind of the declarant at the time of uttering the statement.

The learned authors further refer to the case of S v Tuge 1966 (4) SA 565 (A) wherein:

“[T]he court held that the following conditions needed to exist for a res gestae statement to be admitted into evidence:

(a) 'The original speaker must be shown to be unavailable as a witness';

(b) 'There must have been an occurrence which produced a stress of nervous excitement';

(c) 'The statement must have been made whilst the stress was still 'so operative on the speaker that his reflective powers may be assumed to have been in abeyance';

(d) 'The statement must not amount to a reconstruction of a past event.'”

Against the above backdrop of the position of the law relating to res gestae, I am unable to find fault with the manner in which the court a quo dealt with the issue of res gestae when it stated as follows:

“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.”

As with any other matter, each case must be decided on its own merits.

In casu, on a view of the evidence adduced before the trial court, and on a consideration of the manner in which the events unfolded, as well as the time frame within which it all happened, the court a quo cannot be faulted when it stated that:

“(I)t cannot be said that there was no spontaneity in the exclamation.”

As commented by LORD WILBERFORCE, at p806h-j:

“The reason why this is so (that is the application of different standards to the admissibility of the hearsay statement) is that concentration tends to be focused on the opaque or at least imprecise Latin phrase rather than on the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been the victim of assault or accident.”

As to the actual words used by the deceased, the court a quo cannot be faulted for believing the State witnesses.

The appellant did not dispute the evidence of the State witnesses as to what was uttered whilst the witnesses were still in their room. He would naturally not have been able to challenge the witnesses as his evidence was that he could not make out what the deceased was saying as she was screaming. The witnesses said that they were awoken by the deceased's screaming out: “oh mother, I am dying!” as well as calling out to the first witness by the deceased.

Further, the appellant did not dispute that the deceased uttered the words attributed to her by the witnesses after she came back from the tap at the back of the rooms and soon after the fire on her had been extinguished.

The deceased had burn injuries, and, as a result, her undergarment was sticking onto her body.

It is at that stage in the unfolding drama that the deceased said that the appellant had poured paraffin on her and set her alight and that he had the match box on him.

As it turned out, the box of matches was recovered from the appellant when he was subjected to a bodily search by the police - albeit he had a different explanation for his possession of it.

The deceased also asked why the appellant had not also poured paraffin on himself as he had said that he wanted both of them to die.

According to Nyasha Tsopotsa, she also said to the appellant that he should finish her off as he had been tormenting or ill-treating her for a long time.

There is another consideration that buttresses the court a quo's assessment of the evidence that was placed before it.

Notably, it was the appellant's stance, that, all that the deceased said in the presence of the State witnesses were all lies.

By implication, the appellant's contention was that the deceased deliberately concocted a false story to his disadvantage.

It was thus the defence's argument that the said utterances ought not to have been accepted or admitted as part of the res gestae.

On this aspect, the trial court dispelled the risk of concoction on the view, that, to hold otherwise would be to adopt or take an armchair approach.

I find no misdirection by the court a quo in this regard on a view of the evidence that was placed before it.

The citation, by the defence, of the case of Thompson v Trevanion (1693) Skin 402 ER 179 does not, in my view, establish any misdirection by the trial court in this regard. I say so for the reason, as already stated earlier, that, it is trite that each case must be determined on its own merits.

In the appellant's heads of argument the following statement by HOLT CJ, in the cited case, is quoted:

“What the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage, might be given in evidence.”

The court was alive to the fact that it was dealing with circumstantial evidence, there being no independent witness to testify as to how the deceased ended up in flames.

It rightly drew the applicable legal principles as espoused in R v Blom 1939 AD 188 and followed in Zacharia Amos Simango v S SC42-14; Abraham Mbovora v S SC75-14.

The two cardinal rules on circumstantial evidence have been stated to be:

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

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

The court isolated the issue that needed to be answered by the circumstantial evidence, viz: “whether or not the deceased poured paraffin upon and burnt herself or it was the accused who set her alight after pouring paraffin on her.”

On the evidence that was placed before the trial court, there are certain baseline facts that stand out.

The appellant was the only person with the deceased in her room when she called out the first witness name and screamed. The deceased did not call for assistance from the appellant, whether on the appellant's evidence or on the evidence of the State witnesses. She called out to Tawanda Miti. The appellant himself, a frequent visitor to the premises, according to the evidence of the State witnesses, did not call out for help from the deceased's neighbours who he must have known to be in their own rooms. Thereafter, the deceased pointed to the appellant as the person who had doused her with paraffin and set her on fire.

Another notable aspect is that the appellant said that the deceased got dressed in a skirt and blouse when he indicated that he wanted to have a discussion with her. But, when the deceased was seen by her neighbours, when they reacted to her distress call, she was observed wearing only a petticoat that was now stuck to her body due to the burning.

There was no explanation by the appellant as to how the skirt that he found burning on the floor after he came back to the room had got there.

In the circumstances, I find no misdirection on the part of the court a quo when it found as follows:

“…,. The complainant was heard screaming and calling out to 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 aide (sic). It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.”

The court a quo correctly noted, that, the appellant came to visit the deceased in the dead of night and that he had a grievance that he wanted to raise with her about her reported behaviour. It was the trial court's finding that the appellant must have been incensed and that his interrogation of the deceased was unlikely to have been amicable as he wanted the court to believe. The trial court found the appellant's narration of events, as regards the deceased's reaction to his questions, to be “illogical and improbable to a point that it can safely be said not to have happened.” The court found it to be improbable, that, after she was asked as to why she went to bars in the absence of the appellant, she responded by pouring paraffin on herself and setting herself alight.

I find no misdirection in this finding by the court a quo.

In assessing the sufficiency of the circumstantial evidence that was placed before it, the court a quo drew guidance from, firstly, the cases of R v Sibanda & Others 1965 (4) SA 241 (R.A.) where…, BEADLE CJ, dealing with circumstantial evidence, stated 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 grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

It also referred to S v Chabalala 2003 (1) SACR 134 (SCA) in which, at paragraph 15, the following 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 findings made by the court a quo must be viewed against the trite position at law, that, as the trial court, it had the advantage of seeing and hearing the witnesses as they testified to the events of the night in question. That is an advantage that an Appellate Court does not have. An Appellate Court hears an appeal on the record and cannot disregard findings made a quo unless a reading of the record patently does not support such findings.

There is no patent misdirection in the findings of the court a quo discernible on a reading of the record.

The court a quo's finding, on the appellant's demeanour as a witness, has an important bearing on the determination of his guilt by the court, particularly in circumstances where the court had found that the State had established a prima facie case against him and that he had to be put on his defence.

Commenting on the appellant's demeanour, the court a quo stated:

“…, 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.

This finding, on the appellant's demeanour, by the court a quo, is supported and borne out by a reading of the appellant's confirmed Warned and Cautioned Statement, his Defence Outline, and his testimony in court both in chief and in cross examination.

In the warned and cautioned statement, he said, that, after she had set herself alight, the deceased embraced him and he opened the door while she was still embracing him. When he opened the door, the fire “burned heavily” and she ran to the tap where “she poured some water on her” and he followed her and helped her to extinguish the fire.

In his Defence Outline, he said that after setting herself on fire the deceased “sought to embrace him intending to cause harm to him but he managed to slip away going out of the room.” He said that he also assisted the deceased to put out the fire by pouring some water on her at the water tap.

In his evidence before the court a quo, he said that the deceased wanted to grab him by the neck but she missed and grabbed hold of the upper arm of one hand. He further stated that she got “hold of me in an indication that she did not want to let me go. It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger; that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tap so that I put out the fire. She get hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head and all the body.”

The discrepancies in the extra-curial statement, the Defence Outline, and the evidence in court, in the respect highlighted above, cannot be missed. Significantly, the unexplained discrepancies relate to a stage in the unfolding events that only he could give clear evidence on.

He did not.

In the circumstances, I find no misdirection or error in the court a quo's assessment of the appellant's demeanour.

The issue that has been raised, in relation to the rejection of the appellant's defence by the court a quo must not be considered in isolation.

The court was obliged, as it rightly noted, to consider the totality of the evidence before it. Its reliance on the case of S v Isolano 1985 (2) ZLR 62 (SC), in this regard, cannot be faulted. Therein, LORD DENNING was quoted when he stated as follows in Miller v Minister of Pensions [1947] All ER 372 (KB):

“…, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty but it must carry a high degree of probability.

Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt - but nothing short of this will suffice.”

The court a quo found, that, on a consideration of the evidence before it, and having derived guidance from the authorities, the State had proved the appellant's guilt beyond reasonable doubt and it therefore convicted him of murder with constructive intent.

In the absence of misdirection by the trial court, there is no basis for this court to interfere with the conviction.

No submissions having been made in relation to sentence, this will be taken as a concession that the appeal against sentence has no merit. No basis has been established for interference with the same.

Consequently, it is thus found that there is no merit in this appeal. It is accordingly ordered as follows:

The appeal be and is hereby dismissed in its entirety.

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

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.

HHB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The deceased, Nestai Ncube, was employed as a lecturer at the Midlands State University at the time she met her death. She was 48 years old. She had been married to the accused since 2001 and resided at their matrimonial home at 33 Wentworth Road, Southdowns, Gweru.

The accused, who is aged 63, is facing a charge of murder; it being alleged, that, during the early hours of 27 February 2016, the accused armed himself with a home-made mattock and struck the deceased with it on the head three times. As a result, the deceased sustained three deep wounds in the head, leading to her death.

The accused pleads not guilty to the charge, and, in his defence, avers that he acted in self defence as he was under imminent attack from the deceased.

The bulk of the evidence in this matter is common cause or at least not in dispute. It shall not be necessary to repeat the contents of the State Outline which has been tendered into the record of proceedings and now forms part of the record as exhibit 1.

The Defence Outline was tendered as exhibit 2.

In brief, the accused's defence was, that, prior to this fateful day, the accused had established that the deceased was engaged in an extra-marital affair with one Prosper Maburo. The accused had confronted the deceased's lover who admitted the illicit relationship and promised to terminate the affair.

This did not happen.

In a desperate attempt to save his marriage, the accused had roped in the assistance of two pastors from the Seventh Day Adventist Church, one Xmas Mutero and Artwell Tapera, to counsel the deceased and persuade her to end the relationship.

On the night of 26 February 2016, the two pastors visited the deceased at her matrimonial home and held lengthy discussions with the deceased. At the end of these discussions, the deceased said she needed more time to consider the issue.

The accused avers, that, following this discussion he retired to bed around 9pm. The deceased said she was going to the kitchen to wash dishes.

The accused states, that, he did not notice the time the deceased came to the bedroom. He states that around 2am the following morning the deceased woke up and left the bedroom going to the toilet. When she returned, she was in possession of a home-made mattock (exhibit 5) which she swung at him while he lay in bed.

The accused managed to wrestle the deceased and dispossessed her of the weapon.

The accused then struck the deceased three times in the head as she tried to get up from the bed where she had fallen. The deceased fell down and never got up again thereafter.

She had been fatally injured.

The accused locked the house and the outer gate to the premises and drove off to Sanyathi where he later handed himself to the police.

The accused avers that he had no intention to kill the deceased but acted in self-defence at the spur of the moment and did not have time to rationalize things but had taken immediate defensive measures.

The State tendered the accused's confirmed warned and cautioned statement (exhibit 3) recorded at Gweru on 1 March 2016. In this statement, the accused gave his response to the allegations as follows:

“On the night of Friday 26th February 2016, Pastors Tapera and Mutero had held discussions with Nestai Ncube on the marital problems between myself and Nestai Ncube as I was emotionally stressed. These related to her affair with Prosper Maburo which had been going on for quite some time resulting in her not coming home sometimes and to my former wife, Grace Muchadenyika, whom she thought I was having an affair with and she indicated that she was bitter.

Nestai Ncube needed time to consider the request that she lets go off the bitterness (sic) and vengefulness.

Early Saturday, around 0200 or 0300 hours, Nestai Ncube woke up to visit the toilet, and, after quite a long time, she came back; and, as I looked through the bedroom door, I noticed that she was holding an object. On entering the bedroom she proceeded to where I slept and swung the object intending to strike me.

We wrestled and I managed to get the weapon and struck her and she groaned.

I left home thereafter fearing for my life as my brothers-in-law were known to be violent.

Later, I phoned Xmas Mutero to go and check Nestai Ncube's condition and possibly take her to hospital. I proceeded to Sanyathi to brief my mother and relatives on the matter, and I voluntarily handed myself over to the police at Sanyathi Police Station.

It was never my intention to cause the death of Nestai Ncube.”

After recording the accused's response to the charge, the accused was asked further questions relating to his defence, and two of those questions were as follows:

“Q. When you struck Nestai Ncube where was she?

A. She was on the bed after she had fallen on the bed when I was trying to take the object from her….,.

Q. How many times did you strike her, and on which part of the body?

A. Three times, around the neck area.”

It is important to note, that, the accused stuck to his defence throughout the trial and did not depart from his Defence Outline in material respects when he gave viva voce evidence.

The State tendered the post mortem report as exhibit 4.

The postmortem report was prepared by Dr Ivian Betancourt following an examination on the remains of the deceased at United Bulawayo Hospitals on 29 February 2016.

The pathologist concluded that the cause of death was:

(a) Severe cerebral damage;

(b) Subdural haematoma, skull bones fractures;

(c) Severe head trauma due to unknown object;

On marks of violence, the report indicates the following injuries:

(1) Sutured wound, 10cm, on the middle frontal region;

(2) Sutured wound, 12cm, on the right temporal and parietal region;

(3) Sutured wound, 3cm, on the back of right ear;

(4) Abrasion (one circular abrasions) on the left scapular region;

(5) Swollen both eyelids, marked on the right eyelid;

The post-mortem further reveals the following injuries on the skull:

(1) Subgaleal haematoma on the frontal and both parietal areas and occipital region;

(2) Skull bones fractures (multiple) localized in frontal region (complete frontal region) and another big stellate fracture with bone fragments localized in right temporal and parietal region;

(3) Sortie of encephalic mass and severe brain damage;

(4) Big right subdural haematoma through the right skull fracture seen;

The State produced the murder weapon; a home-made mattock, as exhibit 5, and a visual observation of the weapon reflects that it is a garden tool shaped like a pick axe, with blunt edges on both sides. The mattock has a handle 89cm long; its blade is 23cm long; and it weighs 2.6kg.

The State, with the consent of the defence counsel, introduced the summary of the evidence of the following State witnesses as it appears in the State Outline by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07), namely;

(a) Xmas Mutero;

(b) Nixion Mupasiri;

(c) Osbert Jere;

(d) Prisca Mbwende;

(e) Conrad Ngungu;

(f) Detective Sergeant Mushura;

(g) Detective Sergeant Sakala;

(h) Dr I. Betancourt;

The State opened its case by leading oral testimony from its sole witness Constance Chirigo.

This witness testified that she is employed at Gweru Provincial Hospital as a nurse. She has nine years nursing experience and she was on duty on 27 February 2016, in the casualty ward, when the deceased was brought to the hospital in an ambulance. The witness pushed the patient on the stretcher into the resuscitation room.

The deceased was badly injured and was not able to talk.

She observed two deep wounds, one near the forehead, and the other at the back of the head. The deceased was bleeding profusely from these injuries. The doctor on duty was called to attend to the patient. The wounds were sutured and she was transferred to the female surgical ward for further treatment and care.

The witness's evidence was not challenged by defence counsel as it was essentially common cause.

The State closed its case at that stage.

The accused opened the defence case by giving viva voce evidence under oath.

To a large extent, the accused adhered to his Defence Outline and maintained that he acted in self defence.

The accused narrated, in detail, how he had tried to restrain the deceased from engaging in an adulterous relationship with one Prosper Maburo. He testified that he had confronted his wife's lover at his workplace and warned him not to continue his relationship with the deceased. The deceased's lover promised to discuss the matter with the deceased and thereafter give him feedback.

The accused stated that he got the impression that the affair had persisted as his wife continued to come home late, and, in certain cases, did not come back home at all.

This prompted the accused to solicit the assistance of Xmas Mutero and Artwell Tapera, two pastors from the Seventh Day Adventist Church (SDA Church). The two arrived at the accused's matrimonial home on 26 February 2016 and held a lengthy discussion with the deceased.

The accused testified, that, at the end of the meeting with the pastors, the deceased intimated that she still required more time to consider the issue.

It would seem that the failure by the deceased to undertake to put an end to the illicit affair was not taken well by the accused. It would also appear he was frustrated as he went to bed early.

The deceased meanwhile went to the kitchen to wash the dishes.

What transpired in the bedroom, in the early hours of the morning of 27 February 2016, is only known to the accused and the deceased, who is no longer alive to testify. There is no independent evidence to corroborate or rebut the accused's version of events.

The court shall, to a large degree, assess the evidence placed before it and weigh the probabilities before accepting or rejecting such evidence.

The court is mindful that the accused's version can only be rejected if it is found to be false and if it is not reasonably possibly true.

The accused's version is that he went to bed alone leaving the deceased to do the dishes. The accused stated that he believed that the deceased was only trying to find an excuse to update her lover on the outcome of her discussion with the pastors. The accused says he proceeded to sleep and did not notice at what stage the deceased came to bed.

He said that in the early hours of the fateful day, the deceased had woken up, ostensibly to visit the toilet. He said she took an unusually long time before returning to the bedroom. When she came back, and while he was lying in his bed, he observed that the deceased was holding an object in her hand.

The accused remained still, and, when the deceased was about a metre and half away he realised that she was in fact in possession of a home-made mattock (exhibit 5).

The accused said the deceased swung the mattock towards him and aimed at his chest.

The accused blocked the blow, and there was a tussle for the weapon. The accused dispossessed the deceased of the weapon, resulting in the deceased falling on the bed on her stomach.

The accused said he was seized with fear and could not accurately remember what happened thereafter.

On how he struck the deceased, the accused had this to say:

“As the two of us wrestled, I got hold of exhibit 5. I do not know what happened thereafter. What I still remember is that deceased was still trying to get up that is when I struck her with exhibit 5.”…,.

The accused then narrated that he struck the deceased at least three times, and, when he realized that the deceased was on the floor and injured, he exited the bedroom in a hurry, locked the house and the outside gate, and drove off.

The accused said he knew the deceased's brothers to be persons of violent disposition so he felt unsafe and took a decision to drive to his home in Sanyathi. He did not think it wise to report the matter at a police station in Gweru.

From the accused's own version, he struck the deceased on the head on more than one occasion as she was trying to get up from the bed.

She was no longer in possession of the mattock. He had managed to overpower the deceased and he was in a stronger position.

On the accused's own version, as she lay on the bed, after he had taken the murder weapon from her, she posed no real danger to him. The accused had evidently averted the danger by taking the mattock.

At that stage, the person who was in imminent danger was the deceased.

The accused did not choose to leave the bedroom when he had secured the weapon. He only thought of striking the deceased.

The accused accepts that he delivered at least three blows to the head in quick succession.

He testified, that, he had no time to think or rationalize things and merely took defensive measures. The accused refused to disclose the amount of force he used to inflict the injuries but readily conceded that the extent of the injuries reflected in the post mortem report is indicative of the fact that excessive force was used.

Factual findings by the Court

This court makes a specific finding, that, from the accused's own admission, he was under no imminent attack when he struck the deceased.

The accused was content to state that he was full of fear.

The accused failed to explain why he struck the deceased repeatedly when he was aware that he had already averted the danger.

Counsel for the State fairly put the position when he indicated that had it been shown that the accused introduced the mattock into the bedroom, the matter would have taken an entirely different complexion.

The court makes a finding, that, on the facts, the accused used excessive force and attacked a defenceless person indiscriminately.

The court rejects the accused's explanation, that, when he saw the deceased approaching him with a weapon he remained still in bed and did nothing.

The accused's version on this aspect is not within ordinary human experience.

In the face of danger, any normal human being will seek to confront the source of danger or run away from it.

It is clear that on this aspect the accused was not telling the truth and one would wonder what he was hiding.

Before concluding the assessment of the accused's evidence, the court observes that the demeanor of the accused in the witness stand was poor.

The accused did not answer questions put to him directly and sought to give lengthy explanations. The accused's defence counsel was so exasperated by the accused's manner of answering questions and had to caution the accused to answer the questions put to him.

One crucial observation is that the accused was free to give a detailed account of each and every event up to the moment he went to bed on 26 February 2016. The accused seems to have suffered loss of memory from the point he says he dispossessed the deceased of the murder weapon.

The accused was evidently uncomfortable to confront the gory details of his attack upon the deceased.

On the most critical aspects of this matter, the accused pretended not to remember much.

It is the court's view that the accused was very mean with the truth on his account of what happened in the bedroom. The accused, it would seem, only told the court what he wanted to disclose.

Analysis of the Law

In his book, The Guide to Zimbabwean Criminal Law, PROFESSOR G. FELTOE discusses the distinction between positive or actual intent and constructive intent or legal intent. The author characterises the distinction as follows:

Actual Intention

(a) Desires death. Death is the aim and object; or

(b) Death is not the aim and object, but, in the process of engaging in some activity, foresees death as a substantially certain result and proceeds regardless as to whether this consequence ensues.

Legal Intention

Does not mean to bring about death, but foresees it as a possibility whilst engaged in some activity regardless as to whether death ensues. The requirements are thus:

(a) Subjective foresight;

(b) As to possibility not probability;

(c) Recklessness;

These requirements are now fairly established in our law.

For the court to return a verdict of murder with actual intent, the court must be satisfied, beyond reasonable doubt, that:

(a) The accused's fixed and settled intention was to bring about the death of his victim;

(b) While pursuing another objective, he foresees the death of his victim as a substantially certain result and proceeds with his conduct recklessly.

See the case of Robert Mugwanda v The State SC19-02; The State v Herold Moyo HB19-17.

Self Defence

In our law, the law of private defence, that is, self-defence; and defence of third persons; and defence of property provides that a person is entitled to take reasonable steps to defend himself against an unlawful attack.

Under our law, the defence has been codified, and section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] sets out the requirements for this defence:

(a) There must be an unlawful attack;

(b) The attack must be on the accused;

(c) The attack must have commenced or imminent;

(d) The action taken must be necessary to avert the attack;

(e) The means used to avert the attack must be reasonable;

The court's approach to this defence should be as objective as possible.

The court must take into account the circumstances of the victim and all the emotional pressures which the accused was subjected to. The court must assess the threat that was directed at the accused and the possibility of a fatality arising therefrom.

See the cases of The State v Nkululeko Nleya HB138-02 and Ntsoni v Minister of Law and Order 1990 (1) SA 572.

On the facts of the instant case, the following facts have been established:

(a) The accused perceived the imminent threat to be the mattock that was being wielded by the deceased;

(b) The accused succeeded in averting the danger by dispossessing the deceased of the weapon;

(c) When the accused struck the deceased, he had eliminated the danger and the deceased was lying on the bed trying to get up;

(d) When the accused struck the deceased, he had various options and could have simply exited the bedroom. He did not have to assault the deceased.

(e) The force used in striking the deceased was disproportionate in all the circumstances of the case.

Counsel for the accused fairly conceded, in my view, that he had difficulty in finding the rationality of the means used by the accused in averting the perceived danger.

He conceded that a perusal of the findings in the postmortem report reveals that the degree and extent of the injuries leads to only one conclusion - that the force used to avert the danger was exceedingly disproportionate.

The accused acted recklessly and proceeded with his conduct regardless of the consequences.

The accused's explanation for striking the deceased is that he felt afraid and believed that she might get up and wrestle for the weapon again.

This explanation is not reasonable and does not accord with common sense.

In my view, the State has managed to prove that the accused is guilty of murder with constructive intent.

He did not intend, on the evidence before us, to bring about the death of the deceased. There is, however, proof beyond reasonable doubt that the accused subjectively foresaw death as a substantial possibility when he repeatedly struck the accused on the head with a dangerous weapon.

At the material time, the accused had averted the danger. He failed to explain why it was necessary to inflict the injuries on a person who was lying on a bed. He had neutralized the danger.

We, accordingly, find the accused guilty of murder with constructive intent.

Sentence

This court takes into account the mitigating features of this case as against the aggravating factors.

The accused is a mature man aged 64 years. He spent one month in prison before he was granted bail pending trial. He is a first offender and has lived a blameless life for the greater part of his life.

He has however been convicted of a very serious offence.

His moral blameworthiness is exceedingly high having regard to the following factors;

(i) He savagely attacked the deceased who was lying on the bed and trying to get up;

(ii) He struck the deceased on the head using a dangerous weapon;

(iii) He struck the deceased repeatedly and aimed at the head;

(iv) He used excessive force as shown by the injuries reflected in the post mortem report.

After the assault, the deceased fled the scene and failed to render any form of assistance to the injured victim.

The force used by the accused was grossly disproportionate to the perceived danger.

What further aggravates the matter is that the accused has shown no signs of remorse and has not shown any regret for his conduct.

The court does take into account the fact that prior to this offence, the deceased had failed to terminate her extra marital affair with her lover. This fact however must be taken together with the fact that the accused himself was accused of having an affair with his ex-wife.

The moral turpitude of both parties was therefore on level terms.

These courts will not condone the use of violence as a means of resolving matrimonial disputes. This was a barbaric and despicable attack on a defenceless woman. The accused struck three (3) fatal blows and the deceased died a painful death. This court must impose a sentence that is just and fair. The sentence must reflect the seriousness of the offence.

The accused is sentenced to 20 years imprisonment.

HHB24-15 : THE STATE vs THEMBINKOSI GUMBI
Ruled By: KAMOCHA J

The 42 years old accused pleaded not guilty to the murder of his wife which was alleged to have occurred on 29 December 2013 at House Number 400B/6 Mbizo, in Kwekwe in the Midlands Province.

He was alleged to have caused her death by striking her on the head and all over the body several times with a shock absorber, intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

The State Outline was read and produced as exhibit one.

Exhibit 2 was the Defence Outline which was also read for the record and was produced.

I do not propose to read exhibits 1 and 2 all over again.

The accused's confirmed extra curial statement was produced as exhibit 3 which was brief and reads thus:

“I admit to the charges levelled against me that I assaulted and killed Nyarai Moyo. I struck her once with the metal shock absorber on her head which is what I think caused her death.”

It should be noted that his two defences, which appear in his Defence Outline, were not included in his confirmed statement.

The defences were:

(a) Provocation; and

(b) Self defence….,.

Exhibit 4 was a post mortem report by Doctor Maurice Gonzales who examined the remains of the deceased.

He observed a 17cm injury on the left parietal area, a periorbital haematoma, and bruises on the upper and lower limbs.

The doctor opined that death was due to brain damage; a depressed skull fracture following an assault.

The fifth and last exhibit was a shock absorber used by the accused to assault the deceased which is 65cm long and weighs 5.490kg. The court noted that the shock absorber was from a heavy vehicle.

The evidence of 5 of the 7 witnesses listed on the State Outline was admitted by consent of the defence counsel as it appears in the State Outline in terms of the provisions of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Viva voce evidence from two witnesses was that the accused was their neighbour who has been in the area for about one and a half years. They said the deceased was his wife. Sadly, the couple used to have frequent fights.

On the fateful day, they had one of those fights.

They heard a sound of a loud bang. On going to investigate, it was discovered that the accused was smashing his car. The deceased had gone into the car and appeared to have locked herself there.

The accused was seen assaulting the deceased, hitting her indiscriminately with some object which they later learnt was a shock absorber.

They called the police, who, when they arrived and knocked at the accused's door, the accused would not allow them in. The police had to tell him that they were armed with a firearm and would break the door and enter.

The accused then opened the door. When asked why he was beating up his wife, the accused did not say anything until the police took him and his wife away.

The accused never told the police that he was provoked by the fact that the deceased had confessed that she had been talking to one Lloyd, who was her boyfriend, on the phone.

Neither did he mention to the police that the deceased had got hold of his private parts and he was defending himself.

These defences were never even mentioned to the officer who recorded his extra curial statement and the magistrate who confirmed the statement.

There is uncontroverted evidence that he was properly warned and cautioned and he made the statement freely and voluntarily.

The accused's explanation was that when asked to explain why he was beating up his wife he did not find it necessary to mention these defences as he had decided to raise them at the police station when making his statement.

When that stage came, he decided to mention those defences in court.

When he was before a magistrate for confirmation of the statement, he made up his mind to raise the defences at this trial in the High Court.

The accused's explanation does not need any serious consideration as it is patently false.

The defences are hopeless after-thoughts and are hereby rejected.

The deceased never made any confession about having an affair with one Lloyd. Neither did she catch hold of his manhood.

The accused perpetrated a prolonged assault on the deceased using a wet stick, which he called a switch, all over the body. He struck her with exhibit 5, the shock absorber, on the head - a very vulnerable part of a human body.

The accused was a deliberate liar who is not worth to be believed.

The defence counsel fairly conceded, in my view, that, in the light of the evidence that is before this court, the accused was guilty of murder with constructive intent and did not persist with the limited plea of culpable homicide.

In the result, this court finds the accused guilty of murder with constructive intent.

Sentence

All that needed to be said on the accused's behalf was well presented by the accused's legal representative. In particular, the accused had spent one (1) year pre-trial incarceration.

On the other hand, the turning of family homes into war zones cannot be countenanced moreso where human life is lost in the process. A clear and loud message must be sent out there, that, perpetrators of such crimes will be adequately punished.

The accused perpetrated a vicious and prolonged assault on the deceased who was defenceless. Such gratuitous violence will never be tolerated.

This court always guards jealously the sanctity of human life. The accused would have been sentenced to no less than 19 years had it not been for the fact that he has spent one (1) year pretrial imprisonment through no fault of his.

It had been submitted that his in-laws had demanded cattle and he paid compensation of six (6) head of cattle. His uncle said that a longa manu delivery of eight (8) cattle was made – two (2) were sold by the inlaws and six (6) were still at the home of the accused's uncle.

The compensation in fact amounted to extortion. It was not a willing one. I treat it as no compensation.

In the result, the justice of this case will be met by a sentence of 18 years imprisonment.

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Law Portal
Zimbabwe

Domestic Violence re: Approach and the Peace Order

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING
Ruled By: NDOU J

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING
Ruled By: NDOU J

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

HHH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

HHB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

HHH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HHH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HHH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HHB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

HH955-15 : SAMUEL UNDENGE vs BONGANI UNDENGE
Ruled By: MAKONI J and MWAYERA J

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HHB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HHB24-15 : THE STATE vs THEMBINKOSI GUMBI
Ruled By: KAMOCHA J

Categories

Law Portal Zimbabwe

Domestic Violence re: Approach and the Peace Order

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING Ruled By: NDOU J

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING Ruled By: NDOU J

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE Ruled By: GUVAVA J and MAWADZE J

HHH167-15 : STATE vs ALLEN GUDYANGA Ruled By: CHIGUMBA J

HHB89-15 : EDNA SIBANDA vs THE STATE Ruled By: MUTEMA J and MOYO J

HHH190-16 : THE STATE vs FORTUNATE NSORO Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HHH515-17 : STATE vs MADALITSO RANCHI Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HHH794-16 : STATE vs EDMORE KARADZANGARE Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HHB45-17 : MBONGENI MPOFU vs THE STATE Ruled By: MATHONSI J and TAKUVA J

HH955-15 : SAMUEL UNDENGE vs BONGANI UNDENGE Ruled By: MAKONI J and MWAYERA J

Appealed SSC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal HHH458-18 : THE STATE vs KIZITO MUTSURE Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HHB124-17 : THE STATE vs FREDDY SHAVI Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HHB24-15 : THE STATE vs THEMBINKOSI GUMBI Ruled By: KAMOCHA J

Categories

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Law Portal
Zimbabwe

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING
Ruled By: NDOU J

HB16-10 : LOVEMORE SIBANDA vs SIBONGILE JINAH SIBANDA and THE CLERK OF MAINTENANCE COURT, TREDGOLD BUILDING
Ruled By: NDOU J

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

HHH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

HHB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

HHH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HHH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HHH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HHB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

HH955-15 : SAMUEL UNDENGE vs BONGANI UNDENGE
Ruled By: MAKONI J and MWAYERA J

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HHB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HHB24-15 : THE STATE vs THEMBINKOSI GUMBI
Ruled By: KAMOCHA J