From the respective positions of the State and the defence, there is no denying that the accused was responsible for the unlawful killing of the deceased. The State counsel argued in favour of a verdict of murder with actual intention as the primary consideration, while the defence passionately argued for murder with constructive intent..,.

Defence counsel's persuasion stemmed from the fact that according to his reading of the evidence, when the offence occurred, the accused was drunk to the extent that he could not have formulated an intention to kill. He was persuaded by the eleven litres of traditional beer which the accused alleged to have partaken on the day in question. On the contrary, the State argued that the accused had already made the intention to kill before he had even started drinking beer and that the conduct of the accused person after the commission of the murder demonstrates that he was in full control of his faculties.

In the court's view, having accepted the evidence of Amos, it is clear that long before the stabbing the accused had already formulated the intention to kill before he went to partake beer at.,. The accused, having formulated the intention to kill before partaking of beer, subsequently drank beer to gather some courage and., used a lethal weapon to violently stab the deceased on the deceased's delicate and vital organ, the chest, with devastating consequences.

This is trial for murder.

The accused, a woman of twenty-two years of age at the time of the commission of the offence, was charged with murder, to which charge she pleaded not guilty to.

The genesis and background of this case is that on the 7^th of January 2007, the accused carried the deceased on her back and took him to Ngezi River. Upon arrival, she threw the baby into the flooded river, which resulted in the baby drowning, and died, as a result thereof.

She pleaded not guilty to the charge.

This is trial for murder.

The State opened its case by calling Regis Chitambira.

His evidence was that he resides in Harare but owns a plot in Mvuma. The accused was employed by him as a herdman while the deceased was his nephew. On the 3^rd of August 2003, he left Harare for Mvuma with his friend, one Maseko. Upon arrival at the plot, he discovered that the accused had sold the meat of a beast which he had previously reported to have died. He, however, could not properly account for the proceeds of the sale of the meat. The witness also discovered that some maize seed was missing, and the accused could not give a satisfactory explanation for this.

At that stage, the accused left them, on the pretext that he was going to collect firewood and round up the cattle, but never came back.

The witness made a follow-up to Chikara Village where he was advised that the accused had been observed running to Sebakwe River. He further received a report to the effect that the accused was a problem in the community. Upon receiving these adverse reports about the accused, he went on to inform the village head, one Muromo, that he no longer wanted him in his employment. He advised Mr. Muromo to report the accused to the police, and went back to Harare with his friend Maseko. Upon arrival in Harare, he dispatched his nephew, the now deceased, to go and look after his cattle at the plot. That was the last time he saw the deceased until the 31^st of August 2003 when he again went to the plot and was then advised that the deceased had been found buried in an anthill hole.

This was the gist of his evidence.

The defence opened its case by calling the accused.

His evidence was that he was, indeed, employed by Regis Chitambira as a herdman. On the day in question, Regis Chitambira, and Maseko, arrived, and he explained to them about the non-availability of the proceeds of the sale of the meat and the disappearance of the maize seed. They asked him to go and look for firewood in order for them to cook and also to round-up the cattle, as they wanted to see them before they went back to Harare. He could not locate the cattle, and he did not come back as he was afraid of Maseko.  

He therefore stayed away until Regis Chitambira and Maseko returned to Harare.

He only came back to sleep after they had gone. He woke up in the morning to continue looking for the cattle. He, however, went for a beer drink, and only came back on the third day. Upon arrival, he found the deceased present. He advised the deceased that he wanted to take his belongings and proceed to see Regis Chitambira. However, the deceased denied him entrance and a struggle ensued. It was his further evidence that the deceased advised him that if he wanted his belongings he should first go to Harare. They argued, and the accused forced his way into the room. He struck the deceased with a fist. The deceased tried to pick up an axe but failed. The deceased's failure to get possession of the axe gave him an opportunity to grab the axe, which he used to strike the deceased on the head, resulting in him falling down. On realizing that he had killed the deceased, he wrapped his body with a carpet and placed him on a reed mat. He then pulled him, and buried him in an anthill hole. He then boarded a bus to Harare.  

It was his further evidence that he saw Regis Chitambira and they discussed about his salary which he had not received for the past two months. He then disappeared, and was only arrested in 2006 at Beitbridge.

When asked why he did not report this incident to anyone, he stated that he could not do so as he was afraid.

The only reasonable explanation for this murder, in the court's view, is that the accused was upset by finding that his job had been taken by the deceased.

What he failed to appreciate is that the deceased was just a mere employee, like himself. The person who had wronged him, if at all, was Regis Chitambira.

Counsel for the State has urged the court to find the accused guilty of murder with actual intent on the basis that he used an axe on the deceased's head.

On the other hand, counsel for the accused has argued that the accused's version should be accepted as a true reflection of what took place on the day in question.

We find that the accused's story is difficult to believe as his explanation does not make any sense at all.

The accused is charged with murder to which he pleaded not guilty.

It is alleged that on the morning of 27 September 2007, he wrongfully, and unlawfully, intentionally killed Martinus Jacobus Ooshuyse.

It is common cause that the accused, and one Collin Tsikidze, who is still at large, are former police officers. On the 26^th day of September 2007, the accused, and Collin Tsikidze, invited Leonard Dube to the City Centre for a drink. It is also common cause that at this time the accused had already left the force, while CollinTsikidze was still a serving member. At around 0300 hours, they approached the deceased, who was resting, and had parked his car at Pine Brothers Supermarket, between Robert Mugabe Way and G.Silundika Avenue, Bulawayo.

It is the State case that they identified themselves as policemen, and advised him that he was under arrest for wrong parking. They forced him to drive to the Central Police Station to pay a fine. On their way, they forced him to drive to a different direction; he stopped his motor vehicle and asked where he was being driven to.

Collin Tsikidze produced a pistol and shot him once in the head, and he died instantly.

Count Two

The State called Thabani Ncube.

His evidence was that the deceased was his brother, while the accused is a local man and neighbour, whom he regarded as a brother. On the 1^st of January 2004, he left, with the deceased, for Dula Business Centre. They joined other revellers who were drinking beer, but he was not drinking. The deceased asked for money to buy beer from him, and he gave him. The deceased later reported that he had found the accused and had combined money to buy beer. He, however, came back later and reported that the accused had drunk all the beer. The deceased went away for an hour. This witness followed him after an hour and found the accused and the deceased holding each other as if they were fighting.

He then heard the accused invite the deceased to come to a certain spot. He did not bother at the time as he knew the accused and the deceased to be friends.

Later on, he observed them exchanging blows. He, together with one Dingulwazi, ran towards them and observed that the deceased was now losing breath, and he fell down. The accused let go of him, picked up his hat, and went away.

He then went back to where other people were, and brought Galvin Dube, and the security guard, to the scene. The deceased then died.

He disputed that Galvin Dube was involved in the fight between the accused and the deceased as he is the one who went to call Galvin Dube and the security guard.

With regards to Count Two, the accused told the court that on the 1^st of January 2004, he went to Dula Business Centre in the company of others. At about 11pm, he decided to go back home. Amongst the people he had invited to accompany him home were the deceased, Thabani Ncube, Galvin Dube, and Ayanda Moyo.

At about midnight, he observed that there was some misunderstanding between the accused and the deceased - but does not know what had caused it. During the commotion, the deceased started attacking him, and they started fighting with their hands. During the fight, some people joined in and he left in his scotch cart. While he was leaving, he heard the deceased calling Galvin Dube's name twice.

He denied having been in possession of a weapon, and also denied stabbing the deceased.

This was how far his defense could lead him through his evidence.

We find that even if it was not the accused's aim and object to kill the deceased, but, the fact that he produced a knife, and used it when he was fist fighting with the deceased, he realized that this activity would most certainly result in the death of the deceased.

The 27 year old accused admitted assaulting the deceased with a log 5 times but stated that he had no intention to kill him. He stated that he had delivered three blows with the log aiming at the head of the deceased and aimed two blows at the back. The court entered a plea of not guilty on his behalf.

His legal representative tendered a plea of guilty to culpable homicide but the State counsel would not accept the limited plea.

The outline of the State case was read and produced as exhibit 1. The accused's Defence Outline was produced as exhibit two. In it the accused said the following;

“Accused denies the allegations of murder against him and he therefore pleads not guilty to the charge.

He will state that he had dropped from the bus on his way from Mbembesi where he had gone on a visit. He will state that he had been drinking some beer in the bus. He was drinking Smirnoff and he had finished a bottle of 750ml and he was drunk.

He met the deceased who was in the company of some young men. The young men then invited him to go and drink traditional brewed beer. He refused and told them that he did not drink the beer known as “sigodokhaya.” This did not go down well with the deceased who quizzed him as to why he did not drink the traditional beer and he asked him who he thought he was. Deceased hit him twice on the face with an open hand and he bled from the left ear. When he tried to run away, the deceased pursued him and he hit him on the back with a brick. Deceased continued to pursue him and he threw a stone which he dodged. Accused then took a log and hit deceased five times with the log all over the body. He will state that he never mentioned anything about ZANU (PF) and MDC and that was the motive for the assault. He will state he had no intention to kill the deceased but he acted out of intoxication, provocation and self defence.

Wherefore he prays that he be found not guilty of murder and he offers a plea of guilty to a lesser charge of culpable homicide.”…,.

Viva voce evidence was led from four witnesses, namely, Langton Mpofu, Rebecca Mkandla, Ephraim Khabo and Never Khabo. All the witnesses live in Village 5, Kennelworth, in the Inyathi area. The deceased also lived in that area but the accused was a stranger in the area. He lived in Nkayi.

Langton Mpofu told the court that on the fateful day he and Mloyiswa Sweswe came out of his aunt's homestead; when they got onto the road outside the homestead he noticed a stranger who happened to be accused walking in the direction they intended going. They walked behind the person who was about 20 metres in front from them. As they continued walking they met the deceased who was in the company of Never Khabo. They stopped to talk to them. As they were still talking the accused turned back and went to where they were and called the deceased by his nickname saying:-

“Santana you are an MDC supporter, I will kill you today.”

The accused was armed with a brick in each hand.

Mloyiswa Sweswe remonstrated with the accused. He asked him if he was not ashamed of wanting to assault an elderly person. The accused seemed to have taken heed of that and threw the bricks down. He then went back to Tshuma's homestead where he had come from. Langton Mpofu and Mloyiswa Sweswe continued on their way and parted ways with the deceased and Never Khabo.

He said the deceased was not armed with anything when the accused threatened to hit him with bricks. Neither did the deceased say anything to provoke the accused into uttering the threats. As far as the witness was concerned, there was nothing to suggest that the accused was drunk. The witness and Mloyiswa Sweswe never invited the accused to go and partake in traditional beer. Nobody invited him to do so at any stage.

The evidence of Langton Mpofu was supported by that of Never Khabo who had been walking with the deceased.

She told the court that when the accused went to where they were he uttered words to this effect:

“You, Santana, MDC member, I am a ZANU (PF) member – I will kill you today.”

The accused then removed the hat that the deceased was wearing and hit him with it. He armed himself with bricks which he later dropped after someone had remonstrated with him.

The accused thereafter went into Tshuma's homestead. The witness then continued walking with the deceased until she heard a voice saying words to this effect:

“Run away someone armed with a pole or log is coming.”  

She saw the accused coming with a log. She tried to pull the deceased, who, because of the alcohol he had taken, could not run fast. She then ran into the homestead of her maternal uncle. The accused continued to run after the deceased who ran towards Rebecca's homestead. She could hear thuds from blows being delivered. After about 5 minutes she went to Rebecca's homestead where she found the deceased lying motionless. She said the deceased had not provoked the accused in any way. He had not even said anything to the accused. He was not armed in any way when the accused was threatening to hit him with bricks. She was emphatic that the deceased never struck the accused with an open hand on the ear causing bleeding from it. The deceased never threw any stones at the accused. The witness was of the opinion that the accused was not drunk as he appeared normal to her.

She was emphatic that the accused was never invited for a drink of traditional beer. He was not under any attack when he went to arm himself with the pole. She said the suggestion that the deceased chased the accused was false.

She is corroborated by Rebecca Mkandla on that point who said it was the accused who was chasing the deceased as they entered her homestead. The deceased was unarmed. She screamed out at the same time telling the accused to stop what he was doing since he was in her homestead. But he did not listen. The deceased ran around a 4 cornered house and fell down. The accused got up to where the deceased was and belaboured him with the pole…, as he lay down.  The witness said the accused aimed his blows to the head of the deceased. She said he delivered at least 5 blows. All were aimed at the head since the accused was next to the head. The accused only stopped when the deceased was motionless. He ran away on seeing Ephraim Khabo who gave chase and later returned with the log.

Rebecca Mkandla said she did not think that the accused was drunk. Her conclusion was based on the speed at which the accused ran.

Ephraim Khabo's story is to the same effect.

He said the accused was able to jump over the fence to return to Tshuma's homestead and put up a strong struggle when he was trying to dispossess him of the log. The witness said he did not detect any smell of alcohol on the accused's breath as he struggled with him. He said the suggestion that the log used by the accused was not exhibit 7 was false because when he disarmed him he handed the log to the police.

The witness said the accused aimed the blows to the head….,.

It is clear from the evidence that the accused was not provoked in any way when he commenced the attack. The deceased was not even aware that he was going to be attacked before Rebecca Mkandla shouted that the accused was about to attack him with a log. Similarly, the accused was the aggressor right from the onset. The deceased did not try to attack him at any stage. The accused was therefore not defending himself from anything. All the witnesses concluded that the accused was not drunk. They gave their reasons for arriving at such conclusions. The accused himself said although he may have been drinking he knew exactly what he was doing. From his own version, his recollection of events does not show that he was drunk….,.

The motive for the attack seems to have been political as mentioned by the witnesses. The accused's intention was to kill his political opponent. He carried out his intention. This is clear from the way the killing was executed. The accused used a heavy mopane log. He aimed all his five blows to the head when the deceased had already fallen down. He struck him until he was motionless. This is a clear murder with actual intent. The accused is accordingly found guilty of murder with actual intent.

Verdict: Guilty of murder with actual intent.

The 30 year old accused was charged with the crime of murder. It being alleged that on 18 October 2009, and at the 433km peg along the Bulawayo-Victoria Falls road, he did wrongfully, unlawfully and intentionally kill and murder Judson Mukatini, a male adult in his lifetime therebeing.

The accused pleaded not guilty when the charge was put to him. The State Outline was read and produced as exhibit one and I do not propose to read it again. I, however, will read exhibit two – the accused's Defence Outline which reads thus:-

“Accused denies the allegations of murder leveled against him and he therefore pleads not guilty to the charge.

1. He will state that he was not involved neither does he know anything in connection with the murder of the deceased.

2. He will state that the cellphone in question did not belong to the deceased but it was his own which he was given by some Congolese he had assisted to cross the border illegally from Zambia into Zimbabwe through the Victoria Falls border post.

3. He will also state that Natally Natasha Sibanda was his girlfriend and that is the reason why her photograph was in that phone.

4. He denies ever following the deceased and Natally Natasha Sibanda on the fateful day and argues that she is trying to incriminate him in order to protect herself and the real culprits since they could have acted in common purpose.

5. He also denies that he threatened her in order for her not to report the matter.

6. He will state that he was detained by the police for five days before his arrest on this matter and that he was severely tortured by the police and forced to make admissions and indication and that is the reason why his warned and cautioned statement was not confirmed.

Wherefore, he prays that he be found not guilty and that he be acquitted of the charge.”…,.

The State called two witnesses to give viva voce evidence.

The accused was charged with, murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

She pleaded not guilty.

The facts of this case are generally common cause. The accused was the deceased's daughter. She is a woman of advanced age though she said she does not know her age as she cannot, read or write. The deceased was staying with the accused at the farm where the accused worked. The deceased was aged and blind. She therefore needed the accused's assistance as she at times soiled her clothes. The accused had stayed with her for three years.

On 25 December 2007 the accused's employer threw a Christmas party for his employees. The accused left for the party early in the morning. She left the deceased at home. She had given her food and left her drinking beer. The accused drank a lot of beer at the party resulting in her having to be carried home by Loyce Ruzvidzo and her husband. They left her sleeping in the verandah after Loyce Ruzvidzo had given the deceased food she had brought from the party. The accused must have been taken to her house before lunch, as she says in her confirmed warned and cautioned statement which was produced by consent that her drunkenness prevented her from feasting on the sadza which had been prepared for the Christmas party. She slept in the verandah until sunset when she woke up intending to go to the toilet. As she walked out she stepped on human excrement by the kitchen door. The deceased used the kitchen as her bedroom. The accused went into the kitchen and confronted the deceased telling her that she must learn to use the toilet. The deceased responded by saying she had done what she did because she (“the accused”) had left her alone when she went to the party. The accused took a walking stick the deceased used for walking and assaulted the deceased on the forehead. As the deceased fell down she struck her again on the head. The deceased fell on bricks which were in the kitchen. The accused then struck her twice on the ribs, and left for the party.

The accused pleaded not guilty raising the defence of drunkenness and provocation.

The State attempted to dispute the manner in which the assault took place by calling Dr Dhlakama and Jane Chimusanga.

Counsel for the State submitted that the accused caused the deceased's death with actual intent. He relied on the accused's confirmed warned and cautioned statement which was produced by consent as exhibit 1. In the relevant parts of her warned and cautioned statement the accused said -

“I have understood the above caution. I admit to the allegations being leveled against me because I wanted her to die before my death as she caused problems in my family, I could be hardly happy as I was being assaulted wherever I could go on allegations of possessing goblins to attack other people. On Christmas day, all farm workers were invited to a party organized by farm owner, hence after breakfast I went to the tobacco barns which was the venue, and this was after I had given Esinath some tea, then opaque beer which I had left her drinking. On arrival at the venue we were given opaque beer, after which we were given clear lagers. I quickly succumbed to drunkenness and was escorted to my residence by Dondito and his wife rendering me unable to feast on the party sadza. At almost sunset I woke up particularly sober and surprised that I was at my residence. As I woke up I found that Esinath had relieved herself by the house instead of excreating in a scrapmetal structure for that purpose and this triggered my anger as I went into her room and struck her on the head using her walking stick thereby sustaining a deep cut, and further assaulted her on the left ribs twice, then started out and headed towards the party venue. When I struck her on the head she cried, “Why are you assaulting me”, I gave a response and when I made the first strike on the rib cage, she painfully responded this time without a cry, and on the second strike she gave no response. I returned to the party. I drank a little beer, then in the company of Mrs Manhiri and Mrs Mukarakaza we left the venue….,.

..,. On arriving home I checked on Esinath and felt that she was not breathing, I went to call Mrs Dondita to see what had happened. She came but did not enter the house, instead she called Mrs Manhiri and Mrs Mukarakuza. Mrs Mukarakuza arrived and lit some thatching grass and we all observed a pool of blood which had oozed out from Esinath's head injury and that Esinath had died. Hauring then commenced and people gathered, my husband Gideon Namurera, who was at work was advised by Mrs Dandito. What pained me most was that Esinath was bragging openly on the death of my three brothers, and my four children, and when I went to find the causes of their death she was pin pointed. She was also saying on her death she wanted a pillow, referring to me, so I decided to let her die before myself.”

Counsel for the State had, in cross examining the accused, re-enforced what the accused said in her statement about having intended to cause deceased's death for the reasons there-mentioned. He pointed out that she had woken up sober from her drunken sleep. She noticed the deceased had excreted by the house. She realized she had stepped on human excrement. She went into the kitchen and asked the deceased about it. She then assaulted the deceased with her walking stick on the forehead. She heard her cry asking why she was assaulting her. She saw her fall onto the bricks. When she struck the deceased on the ribs for the first time she noticed that the deceased responded painfully, without crying out. When she struck the deceased on the ribs for the second time she noticed that the deceased did not respond to the pain inflicted by that blow. She then stopped the assault and went back to the party. This is a detailed and revealing analysis of the accused's consciousness at the time she assaulted the deceased. It gives details of the deceased's vocal response to her receiving pain from the initial blows to her lifeless response to the last blow. It, according to counsel for the State, proves the accused was no longer drunk and knew what she was doing.

He referred us to the case of Sibanda v State SC09-71 where the Supreme Court held that if the accused is drunk, but knows what he is doing, he should be held accountable for his actions.

We agree with his factual analysis of the accused's conduct, and her appreciation of what she was doing. I also agree with his appreciation of the law as it was before the codification of our criminal law. The accused, in her statement, said she wanted the deceased to die before her because she (“the deceased”), had said she wanted the accused to be her pillow when she dies. This reveals a conscious decision on her part to cause the deceased's death, hence her assaulting her till she could not respond to the pain inflicted by the last blow.

Counsel for the accused further submitted that the weight of the walking stick is not such as can be described as a weapon which can be used by a person intending to cause death. He thus concluded by saying the accused's actions on 25 December 2007 where not accompanied by an intention to cause the deceased's death. He argued that the intention to kill the accused admitted in her warned and cautioned statement was not considered and operationalised at the time the accused attacked the deceased. He submitted that such intention must accompany the actus reas for the accused to be convicted of murder. He referred us to the case of S v Stigling En 'N Ander 1989 (2) SA 720 AD where it was held that intention to kill must be proved beyond reasonable doubt. He thus argued that it had not been proved that the accused realised that death would result from her actions.

The 36 year old accused was charged with the crime of murder; it being alleged that on 9 March 2007, at Number 2 Tuli Close, Richmond, Bulawayo he did wrongfully, unlawfully and intentionally kill and murder Rayaan Peterson a young child in his lifetime therebeing. The said child was his son. 

When the charge was put to him he tendered a plea of not guilty.

The accused is charged with the crime of murder to which charge he pleaded not guilty. The allegations against him are that on the 8th August 2009 he unlawfully, wrongfully and intentionally killed Milton Maphosa by shooting him with a .38 special Taurus revolver. The use of such weapon was confirmed by the production of a forensic ballistic report and a post-mortem report was also produced in addition thereto.

The State led evidence from two witnesses.

The first witness was John Mwanja who is employed by Securitas Security P/L where the accused and the deceased were also employed. His evidence was that on the day in question he reported for duty as usual and was then sent to the accused's house by the accused himself to collect a bulb. Upon his return he heard the accused saying to the deceased that they were not working properly, to which the deceased responded that, in his opinion, they were. At that juncture, the accused stood up and hit the deceased with a fist resulting in the deceased falling down. After the deceased had fallen down, the accused picked up a fire extinguisher and hit the deceased on the stomach. While the deceased was sitting down, the accused further picked up a brick and threw it at him. The witness asked why he was assaulting the deceased and he responded by saying “leave me.” The accused then rushed to take a revolver from one of the drawers and went further to ask for ammunition from the witness. The witness refused to give him. While doing so, the accused was advancing towards him. The witness sensed danger and he ran away to make a report to the police - which he eventually did. As it turned out, the accused managed to find ammunition on his own. To his knowledge there was no bad blood between the accused and the deceased as he often saw them talking to each other and on that day the deceased did not provoke the accused in any manner.  Again, to his knowledge, the deceased had never subjected the accused to unfair treatment.

The next witness was Junior Bakali who was the deceased's wife.

It was her evidence that on the day in question the deceased left the house for his workplace to collect his hat. The last witness came to the house, having been sent by the deceased to collect a bulb - which she gave him. After a short while she heard footsteps of the accused coming back. The deceased then stated that he had a misunderstanding with the accused. Within a few minutes she saw the accused on the doorway and suddenly heard a gunshot sound. She then saw the deceased falling down. The accused then ran away while she ran after him. She then saw the accused placing the revolver on his forehead, but, thereafter, he continued to run away. It was also her evidence that the accused was a gentle person and he had a casual relationship with the deceased.

The State then closed its case.

The accused's evidence is that the deceased had always made his working environment very difficult in that he made him work overtime which was not paid for. He raised his concern with the authorities but all this came to naught. Even his attempts to be transferred to Bulawayo were not successful and he believes that was as a result of the deceased blocking him. On the day in question, their misunderstanding was as a result of a telephone call which came through while he was in the office with the deceased. It was not his duty to attend to it as he was off-duty then. A misunderstanding took place that resulted in him fighting the deceased. It is further his evidence that he assaulted the deceased firstly with fists, he threw a brick at him, but, missed. The deceased then grabbed a fire extinguisher which he repossessed from him and threw it at him. It is also his evidence that he pulled out a revolver which was in a locked drawer after breaking it open using an iron bar. Being armed with a loaded revolver, he followed the deceased to his house where he found him sitting down and fatally shot him. When asked why he shot him, he stated that he did so in order to leave a mark on him and that he wanted him to feel pain.

The accused admits using a revolver and fatally shooting the deceased.

The question is, what are the circumstances surrounding this shooting? When the misunderstanding took place there were just the two of them in the office as John Mwanja was not present then.

We find that on this fateful day there is a possibility that there was a misunderstanding between the accused and the deceased, but, it is not clear who started it. The question then is, should accused be found guilty of murder with actual or legal intent?

In order to determine this issue we have to look at his behaviour and conduct on the day in question. He initially hit the deceased with a fist and he fell down. While he was still on the ground he picked up a fire extinguisher and again hit him on the stomach. He also threw a brick at him.  At this point, the deceased was on the ground and helpless. He stood up and proceeded to his house without retaliating. He got to his house and sat on a chair, before he could fully relate to his wife what had transpired, as he had merely said' “I had a misunderstanding with the accused,” the accused came up and shot him without saying anything at all. It is important to look at the accused's conduct on this day. It is clear that there was some work-related discussion between the accused and the deceased which, according to the accused, upset him and this resulted in some cumulative anger in him. According to Emmanuel Dube there was no reason for him to have been angry with the deceased as all his grievances should have been channelled through either to him or Head Office. The accused first hit the deceased with a fist and he fell down; thereafter, he continued to use a fire extinguisher on him. He, thereafter, broke a drawer and took a revolver, demanded ammunition from John Mwanja but did not give him as he ran away from the scene as the accused was then armed. Having gotten hold of the revolver and ammunition, he loaded it and proceeded to fatally shoot at the deceased who was sitting down in his house and unarmed. This was without warning.

We find that the fact that the accused looked for the revolver which he accessed by breaking a drawer and finding ammunition, loaded it and proceeded to the accused's house after the accused had left the scene, is clear indication that he actually intended to kill the deceased - which he did. We, therefore, find that the State has proved its case against the accused beyond reasonable doubt.

Viva Voce Evidence

The State called viva voce evidence from, Eneresi Siamkonde, Tawanda Wairosi, Detective Sgt Nhari and Detective Cst Katsvere.

That on 6 August 2011 he wrongfully, unlawfully and intentionally killed and murdered Samson Ndobha Moyo, a male adult aged 82 years.

The State Outline was read and produced as exhibit one which I do not propose to reproduce here again. The accused's Defence Outline, which reads as follows, was produced as exhibit 2.

“The accused is Nkanyezi Moyo who ordinarily resides at Tsholotsho, Nata area.

The accused person is charged with murder. The brief facts leading to the charge, as outlined by the State, are that on or about the 6^th August 2011, the accused unlawfully killed the deceased, Ndobha Samson Moyo. The accused is pleading not guilty to the charge of murder or any charge that may arise out of the State's outline.

On the 6^th August 2011, the accused person (who has a welding machine) left his homestead in Nata to meet his clients at the Mangarambe, Gumpu and Irrigation areas. The accused went as far as Gumpu Stores and on his way back he passed through Nata Business Centre.

The accused person never met the deceased on the 6^th of August 2011. The accused person never made any indications to the police and will state they were made by Sikwamula Filias Moyo (the deceased's brother). The accused person's unconfirmed warned and cautioned statement was obtained through torture as the accused was heavily assaulted by the investigating police officer. The accused person challenges the admissibility of his warned and cautioned statement. In the circumstances, the accused person denies the charge of murder or any charge arising therefrom and prays for his acquittal.”

The third exhibit was an affidavit by Constable Nicholas Sibanda who identified the decomposed body of the deceased to Dr S. Pesanai who performed a post mortem examination and compiled the post mortem report, exhibit 4….,.

Viva voce evidence was adduced from three witnesses, namely, Sikwamula Filias Moyo, Chibutu Mashwana and Detective Sergeant Trust Tarusenga.

The accused is facing a charge of murder.

He was 20 years old at the time of the commission of the offence. The allegation against the accused is that on the 16^th day of November 2005 and at Village Sabwela, Chief Simuchembo in the District of Gokwe North, the accused did unlawfully and with intent to kill stab Markson Mafuwa a male adult aged 20 years at the time he met his death.

The accused person tendered a plea of Not Guilty on the murder charge and tendered a limited plea of guilty to culpable homicide. The State did not accept the limited plea and accordingly we proceeded with a trial.

The State commenced proceedings by tendering into evidence a Summary of the State Case marked Exhibit One….,. The summary of the defence case was then tendered into evidence as Exhibit Two. I will repeat the accused's Defence Outline which is as follows:

“1. The accused will say that he is aged twenty eight years, married with two minor children. At the time he committed the offence, in 2005, he was 20 years old.

(2) The accused will say that on 16^th November 2005 he was at his homestead thatching the roof of his hut when later in the day around 3pm he decided to go for a beer drink where deceased and his brothers were selling beer under a tree. Accused arrived and joined deceased's brothers, Sikini and George, and started drinking with them.

(3) After sometime, it was Accused's turn to buy beer and he gave deceased ten thousand Zimbabwean dollars (old currency) for a beer mug going for four thousand dollars. The deceased told him that he no change of six thousand dollars. He told the deceased to come back later to collect his change.

(4) The Accused left and joined deceased's brothers and continued drinking beer with them. After sometime he went back to the deceased to ask for his change whereupon deceased replied rudely that he had already given him his change. Accused was shocked but initially he thought the deceased was joking. Later, he realized that deceased was really bent on not giving him money. He got angry and told the deceased that he wanted his change whereupon the deceased continued to insist that he had given him.

(5) The Accused told the deceased that he could verify the issue about change with his brothers, George Mafuwa and Sikini, who were at the drum when he bought the beer. The deceased then violently pushed the Accused who nearly fell. The deceased struck Accused with a big stirring stick on the arm. Accused retaliated punching the deceased on the face.

(6) The deceased's brothers, Sikini and Bernard, also joined and started assaulting Accused.

(7) Accused then moved a distance from the deceased and his brothers and he felt something piercing his arm. He remembered that he had a knife in his pocket which he was using when he was thatching the roof. He saw Bernard and the deceased coming for him with Bernard holding the stick and he thought that was going to be the end of him. He went for the deceased, who was a short distance from him, and stabbed him in the abdomen whereupon he fell down.

(8) He walked away towards his house afraid that if he remained there deceased's brothers would kill him. He proceeded to Zhomba Police were he handed himself to the Police.

(9) The Accused will say he later paid six beasts to the deceased's family as compensation to appease his spirit.

(10) The Accused will not plead guilty to murder as he had no intention to kill the deceased. He merely acted in self defence after extreme provocation from deceased and his brothers. He will also say the alcohol he consumed in excess caused him to act on the spur of a moment.”…,.

The State led viva voce evidence from two witnesses. The first to testify was Bernard Siamtenge.

The evidence of the witness, which was not substantially controverted by the defence, is that on the day in question, around 1200 hours, the accused was drinking traditional brew (popularly known as seven days), at Siabwela Village with other villagers and the deceased was the cashier selling the beer. A misunderstanding arose between the accused and the deceased after the accused demanded his change of Z$6,000=, which both the defence and State counsel agreed to be the equivalent of US$6=. The accused had bought a mug of beer for Z$4,000= which is now the equivalent of US$4=. It is not disputed that the deceased was refusing to give the accused any money, arguing that he had already given the accused his change. There is no dispute that all the patrons, including the deceased and the accused, were intoxicated. Their levels of intoxication ranged from moderate to extreme but there can be no exactitude on the degree of intoxication of either the deceased or the accused or even the patrons and the witness himself. The facts presented before the court are that drinking had commenced from around 11am in the morning. The witness confirmed that the misunderstanding between the deceased and the accused degenerated into a fist fight. The deceased landed several blows on the accused's face with the deceased fighting back. There is no dispute that the accused overpowered the deceased. The point of departure, however, is that Bernard Siamtengwe says that the accused landed a blow on the deceased's lower jaw (mandible) which sent him crashing to the ground and leaving him unconscious. The witness says he tried to collect water to pour it upon the body of the deceased and when he returned he observed the accused, who had now walked to a distance of about 12 metres away, producing a knife (exhibit 4) and plunging the knife into the deceased's rib case with fatal consequences and the accused then fled from the scene….,.

The defence called the accused to give evidence.

His evidence supports the version of events as narrated by the State witness in material respects. We find find that there can be no dispute that there was a misunderstanding that led to a fight. The accused says that he was under attack from the deceased, Sikini Mapiwa and Bernard Siamtengwe. He says that he was being attacked by a stirring stick. He says that he only remembered that he had a knife when he felt something in his back pocket. He says the reason he used the knife was to enable him to escape. He says that he stabbed the deceased in the rib cage whilst the deceased was standing. He admitted that he had to pull out the knife from the deceased's body. He said he walked away from the scene.  He denied that he fled the scene of crime.

Our finding, from the evidence led, is that the accused must have felled the deceased to the ground by landing a fist to his lower jaw (the mandible). He then proceeded to strike the deceased in the chest cavity with a high degree of force with exhibit 4. The single stab wound resulted in the death of the deceased….,.

The accused is appearing before us on a charge of murder. He pleads not guilty.

The allegations are that on the 17^th October 2011, at Village Manenji, Chief Jiri, Gokwe South, the accused unlawfully and with intent to kill stabbed Molly Sibanda, a female adult aged 60 years old, with a spear on the left shoulder, realizing that there is a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility that his conduct may cause death, thereby inflicting injuries that resulted in her death.

The salient facts of this matter which are common cause are as follows:

There was a long drawn dispute between the accused and the Matsanza family over a piece of land. The accused claimed ownership over a piece of land under Manenji Village alleging that he had allocated it to his son, one Simon Tongoona, in his capacity as Village Head. Tendai Mahokoto also claimed rights, title and interest over the same piece of land. It is not in dispute that the Matsanza family and the accused are relatives. It is also not in dispute that the dispute was between the accused and the Matsanza family. The deceased was not a party to the land dispute. The accused person was the Village Head at the relevant time. It is beyond dispute that the deceased, Molly Sibanda, was stabbed by the accused on her left shoulder with a spear whilst on the disputed piece of land and subsequently died as a result of the injuries sustained from the stab wound. 

What is disputed is whether the accused, or someone else, stabbed the deceased, leading to her death.

The State Case

The State introduced into evidence the summary of the State case marked exhibit 1….,.

The State then proceeded to lead viva voce evidence from the first of its two witnesses, Joshua Matsanza. This witness stated that he resides at Village Manenji, Chief Jiri, Gokwe South. The second state witness, Tendai Machokoto, is his biological mother, whilst the accused was his Village Head prior to the commission of this offence.

He testified that on the day in question he was at a work party (commonly known in venecular as “nhimbe”), at Tendai Machokoto's field. They were cutting bushes and shrubs and clearing the land. The land that was being cleared belonged to Tendai Machokoto and it is the disputed land. The work party comprised at least twelve adult persons all of whom were using axes to cut the shrubs and tree branches. The deceased was also in the work-party. He testified that soon after they had commenced the bush clearance he observed the accused person and his son, Simon Tongoona, coming in their direction. The accused was wielding a spear and his son had a catapult. The accused person ordered them to stop clearing the land and immediately thereafter Simon Tongoona started pelting them with stones using the catapult. He says people in the field started running away in different directions. He says that as they ran, the deceased, due to her advanced age, failed to escape and to run and he observed the accused person stabbing her on the left shoulder with the spear. He said that he was standing at a distance of between 6 metres to 12 metres away. He says the accused approached the deceased, pulled out the spear from the body of the deceased, before fleeing from the scene. Joshua Matsanza testified that he, together with other villagers, rushed to the deceased and tied the wound using a wrapping cloth and a shirt in a bid to stop the bleeding. They carried the deceased home and later secured a tractor from a neighbour which conveyed the injured person to a clinic. The deceased died on the way to the clinic. The witness went and made a report to Sengwa Police Base….,.

The second witness for the State was Tendai Machokoto. She also resides in the same village with the accused and the accused was her Village Head up to the day of the offence. She is the mother to Joshua Matsanza the first witness. She narrated that there was a long standing dispute between her and the accused person over a piece of land. She chronicled how the accused had removed her from the piece of land and proceeded to allocate the same piece of land to his son, Simon Tongoona. The witness says that she took the matter to Chief Jiri who ruled in her favour. She produced a letter from the Chief dated 8^th October 2011 (Exhibit 6) which was tendered into evidence by consent of both State and defence counsel. The letter only serves to confirm that there existed a land dispute between the witness and the accused person and that the Chief allowed the witness restoration of the disputed land. 

It is important to note that the deceased was not a party to the land dispute.

The events of the fateful day, as witnessed by Tendai Machokoto, are that on the day in question she was at work party (commonly known in venecular as “nhimbe”). She says they arrived at her field around 7am. She was in the company of at least twelve adult persons and some children. They were busy clearing the land when the accused and his son, Simon Tongoona, arrived. At that stage, she was the person closest to the deceased. She says that the accused shouted at them indicating that they should stop clearing the land. She says that the accused was armed with a spear whilst his son, Simon Tongoona had a catapult. She says Simon Tongoona started pelting them with stones using the catapult. She could not run away (because, as observed, apparently, she is crippled). The deceased also failed to run away because of her advanced age. The witness said that the accused came up to her and said:

“You should be grateful to the child you are carrying on your back. It was you whom I wanted.”

She says the accused then advanced towards the deceased and when he got to about a metre from her he threw the spear at her. The deceased had her back to the accused. The spear struck the deceased on the left shoulder and the deceased fell down. The accused rushed to pull out the spear from the body of the deceased and then ran away from the scene. The rest of her evidence corroborates the evidence of her son, Joshua Matsanza, in all material respects as to what then transpired after the deceased had been struck with the spear by the accused person….,.

The Defence Case

The defence case is outlined in the summary tendered into evidence as Exhibit 2. The thrust of the defence case is that the deceased was accidentally stabbed by one of her sons or one of the people in the group who threw spears indiscriminately at the fleeing accused person. The accused made a feeble attempt to challenge the confirmed warned and cautioned statement by stating that he did not freely and voluntarily give the statement.

The accused does not dispute that he was at the disputed piece of land on the 17^th October 2011 in the early hours of the morning. He does not dispute that at around the same time there was a work-party at the same field. He says the number of persons there was in excess of twenty eight people comprising of men and women. He does not dispute that at the field was the deceased person, Joshua Matsanza and Tendai Machokoto as well as his son Simon Tongoona.

What is in dispute is what the accused did or did not do whilst at that field.

According to his testimony, he went to the field in the company of his son, Simon Tongoona, for the purposes of clearing the land in preparation for the planting season. He says whilst he was at the field there was no one else except his son and himself. They were busy clearing bushes when a group of people numbering about twenty eighty came carrying a variety of weapons including spears, knobkerries and axes arrived. He says he and his son ran away in a western direction as they came under attack from the group. Before they reached the western end of the field another group, armed with spears and axes, emerged in front of them. When the accused was running away he heard a female voice crying saying that she had been stabbed by her sons.

We do not accept the accused's version of events. We find him to be an unreliable witness. He was argumentative and his defence is patently false. Even where the evidence clearly established that Chief Jiri had ruled in favour of the second State witness, Tendai Machokoto, on the land dispute he wanted to give the court the impression that he had more powers over the land than the Chief. In fact, we found the accused to be clearly contemptuous of the Chief's court and his avowed intention was to overrule the order by the Chief. The accused's demeanour was not impressive. He was evasive under cross-examination and he gave lengthy explanations whilst side stepping questions put to him. He could not, however, say that he had any dispute with the deceased prior to this incident….,.

We find that the accused was the aggressor on the day in question. He armed himself with a spear and his son, Simon Tongoona, with a catapult. The two proceeded to Tendai Machokoto's field well aware that they would attack the deceased and those in the work-party. The accused's evidence was full of exaggeration and falsehoods. He sought to blame his legal counsel by claiming that he had not been given ample time to give him full instructions. When asked whether he needed more time to brief his counsel, the accused became evasive and was not keen to take the offer. We therefore totally reject the accused's version of events on the day in question.

The 15 year old accused was charged with the crime of murder. It being alleged that on 21 November 2010, at a bushy area near Tekwane River in Tematana area in Madlambuzi, Plumtree, he did wrongfully, unlawfully and intentionally kill and murder Angel Msebele a female juvenile in her lifetime therebeing. The deceased was aged five years at the time she met her death.

When the charge was put to him he responded by saying that he understood the charge and admitted it but that he did that with one Cecilia. He said what he was admitting was that he had lifted the child for Cecilia who had gone up the tree to tie the fibre to the tree branch and tied the fibre around the deceased's neck and ran away. He also ran away. They left the deceased hanging from the tree branch. When asked by the court if he knew that by leaving the child hanging from a tree branch she would die, his response was that he did not know anything as he only saw her hanging when Cecilia ran away.

The court then entered a plea of not guilty to the charge.

The State Outline was read and produced as exhibit l and I do not propose to reproduce it here again. I shall, however, quote in toto the accused's Defence Outline which reads thus:-

“Take notice that at the trial of this matter the accused person will plead as follows to the charges leveled against him –

1) He will plead not guilty to the charge of murder.

2) He will state he was walking with one Cecilia and met Angel (the deceased) and Cecilia told him that Angel had stolen her bow and arrow.

3) He will state Cecilia then got tree bark and intended to tie the deceased by her neck to a tree.

4) He will state he lifted the deceased up and put her on his shoulders as Cecilia was on top of the tree and Cecilia put the bark tree strip around the neck of Angel.

5) He will state he then saw Cecilia running away from the scene and in a panic state he left the deceased to hang as he attempted to catch up with Cecilia but to no avail.

6) Sometime later he told a friend of his by the name Kelvin to go with him to the place the deceased had died, as he intended to take the deceased down from the hanging tree (sic). When Kelvin got to the scene, Kelvin fled and told his brother who in turn told other villagers.

7) He will state he did not appreciate his action at the time he had the deceased on his shoulders as he thought he was playing a game but was surprised that Cecilia left him alone and ran away. He will state he did not have the intention of killing the deceased.

8) Surprisingly enough is the fact that Cecilia was jointly charged with the accused but that no longer seems the case Cecilia is not being prosecuted at all.

9) The accused will accordingly pray for his acquittal.”…,.

The evidence of Jacqueline Msebele who is aunt of the deceased was that the accused had been employed at their home on a Thursday but came to resume work the following day in the evening and slept there. The next morning he said he was going to his uncle at Madlambuzi and went away and only returned in the evening when people were about to go to sleep. The next morning, which was Sunday, – the fateful day - she left home with her disabled brother and went to church at around 10am. She left him at the church and made her way home. She said the church was quite some distance from their home. As she walked back home she met her mother going to church on the way without the deceased. Her mother had left the deceased with the accused at home. On arrival at home she discovered the accused and deceased were not there. She then took a rest for about an hour and the accused arrived alone. Surprisingly, the accused asked her where the deceased was. She responded by asking him how he could ask her about the deceased's whereabouts when she had left her with him. When she asked where he was coming from he said he was coming from collecting some cicadas in the bush. After a while she told the accused that she was going to the river to fetch some water; whereupon the accused told her that she would not find him as Kelvin would be coming to collect him so that he could show him the surrounding bush for familiarization as he was new in the area. She was at the river for sometime. On her return home she met the accused and Kelvin as she was going to Manstara's home – (her uncle's home). That was between 4 and 5pm. The accused then said Kelvin should tell her what they had seen as he himself was unable to do so in Isindebele. Kelvin then told her that the accused had said he had seen clothes that looked like those of the deceased down the road. She did not pay much attention to that. She then told them to go and look for the deceased. She later saw her mother Belina Magama, Fiona Mpofu, Bigboy and the two boys going to search for the deceased. After sometime she saw the accused who came running and told her that he had been sent to info*rm her that the deceased had died. The accused continued running until he disappeared. She then heard people crying and screaming and proceeded to where they were. On arrival at the scene she observed the deceased hanging from a mopane tree branch. She was hanged with fresh mopane fibre which had been made into a rope. Her hands were tied together in front of the body. Feet were also tied according to her. The tree branch from which she was hanged was not very high. It was between 1m and 2 metres high. Her feet were about 60cm from the ground….,.

The next witness was Belina Magama the deceased's grandmother.

She told the court that when she left home to go to church she left the deceased and the accused still having their breakfast. She had, however, told the deceased to go to her grandfather, Willy Manstara, after breakfast. When she returned from church the deceased had gone missing. She then joined the search party. The search party had difficulties in understanding the accused who spoke in Tonga. So they decided to go to his uncle's home to get the services of someone to interpret for them. They passed through Elizabeth Ncube's homestead where it was confirmed that the accused had passed through there around 12noon with the deceased saying they were going to Madlambuzi. When they got to the homestead of the accused's uncle they found the wife Portia Dube but the uncle was not there. Speaking through Portia Dube the accused said he did not know where the deceased was but that a certain white bearded man came and took the child away. Fiona then asked the accused, through the interpreter, to lead them to the place where he said he had seen the deceased's clothes hanging from a tree. He and Kelvin led them to the scene where they found the deceased hanging from a mopane tree branch not very high from the ground. Her hands and feet were tied with fresh mopane fibre which was made into a rope.

This witness and Jacqueline Msebele put the deceased's age at 5 years when she met her death as opposed to 4 years recorded by the doctor….,.

Portia Dube, the lady who acted as an interpreter, was the last witness to give evidence. She is related to the accused through her husband who is the accused's uncle.

She told the court that the accused had come from Binga and had not been long in the area. He had been with them for only four (4) days and got a job on the fifth day. It was her testimony that when the accused arrived with the search party he told her that he was left with the child when her aunt and grandmother went to church. When they went to play they met a white bearded man who threatened him with an Okapi knife. He ran away leaving the child behind. He did not know where the white bearded man went with the child. The accused never mentioned the name of Cecilia Ncube on that day and all the witnesses said he did not. 

This witness was also credible and is worth to be believed….,.

The accused had no defence witnesses but gave evidence himself. 

He completely departed from his Defence Outline and disowned it. He also disowned what he told the court when the charge was put to him.

His explanation for the sudden change was that all he told his lawyer to write in his Defence Outline is what the police told him after assaulting him under his feet and he even had difficulty in walking. He said that was what was recorded in his extra curial statement. The accused then sought to now adopt the story that the deceased was abducted by a bearded man. His story does not need any serious consideration and is hereby rejected.

The accused is a dangerous young liar. He made serious allegations against Cecilia who had to be arrested by the police but was only absolved from further prosecution at a later stage. He now admits that what he said about Cecilia was a pack of lies. He is also telling a pack of lies about the bearded man. He is simply an unbridled young liar.

This court finds that he took advantage of the deceased as she was left with him and raped her as noted by the doctor in the post mortem report. When he realized that the rape was going to be discovered he decided to destroy evidence by killing her. He then went on to hang her with mopane fibre to a mopane tree branch. He intended to kill and proceeded to make sure that she died by hanging her on a tree branch. He is clearly guilty of murder with actual intent.

It has never ceased to amaze me how seemingly minor disputes invariably end up as the foundation of serious murder cases which we end up being seized with in these courts.

On the evening of 2 June 2004, a dark cloud hung over Ngulubeni Village in the district of Plumtree. That evening signified a very unfortunate development which will forever haunt the villagers of Ngulubeni who had the misfortune of being witnesses to the untimely death of the deceased, Fanuel Mpala, the then 21 year old lad who lost his life in extremely sad circumstances. The State alleged that it was the four accused persons who included one Temba Adolf Ndebele (who died before this case commenced) who teamed up and attacked the deceased in turns leading to the deceased's tragic death. It was alleged that the accused persons used various weapons ranging from knobkerries, knives, an axe and bottles in fatally assaulting the deceased person who died on the spot in Ngulubeni Village.

In their Defence Outlines, marked annexures I to IV, all the accused persons denied ever participating in assaulting the deceased person and prayed for their respective acquittals.

In support of its case, the State sought to rely on the following exhibits:

Exhibit 1 - an affidavit by Pascal Max Ndlovu.

Exhibit 2 - post mortem report.

Exhibit 3 - accused number 1's warned and cautioned statement.

Exhibit 4 - accused 2's warned and cautioned statement.

Exhibit 5 - accused 3's confirmed warned and cautioned statement.

Exhibit 6 - accused 4's warned and cautioned statement….,.

Other than relying on the aforesaid exhibits, the State also sought to rely on the viva voce evidence of seven witnesses viz, Zamani Phuthi, Sikhumbuzo Mpala, Kuno Ngwenya, Gilbert Ncube, Sgt Tennyson Ncube, Det Sgt Niverd Charuma and Detective Sgt Ndebele….,.

Analysis of the evidence led

Zamani Phuti set the tone for this trial by alleging that on the day preceding the deceased's death Accused 1, who had been seen sneaking into the hut of Sehlapi Phuti (who turned out to be the accused's girlfriend), bolted out of the hut when the witness and other villagers made a surprise entrance to the hut to enquire about this intruder who turned out to be Accused 1. The record of proceedings will show that this witness struggled to put up a coherent testimony of what exactly happened when he first met with the accused persons. His evidence only became clear when the State counsel led the witness in re-examination. It was then that the witness revealed that on the day of the tragic assault he met the four accused persons and Temba Ndebele drinking beer at Ngulubeni Stores. The witness advised the court that he was known to all the accused persons as he stayed in the same village with them. It was the witness' refined testimony that when he met the accused at Ngulubeni shops they demanded the shoes which belonged to Accused 1 which he had left in the village when he bolted out of Sehlapi Phuti's hut. The witness said he sent a young boy to collect the shoes from the village and handed over the shoes to the accused persons. It was his emphatic testimony that as he was conversing with the Accused 2 and 3, they uttered words to the effect that on that day they were not going to leave for Manenji unless someone died in Ngulubeni Area. The witness had difficulties in explaining who actually uttered these words and where exactly they were uttered. As indicated, his evidence became coherent when the State counsel sought clarification of his testimony in re-examination. The witness was steadfast that these words were uttered at the shops by Accused 2 and 3 who complimented such utterances by singing a song underpinned by violence.

The evidence of this witness did not take the State case any further as the witness was honest enough to concede that he did not actually witness the assault of the deceased.

Despite the poor manner in which this witness initially presented his testimony we are satisfied that, indeed, Accused 2 and 3 uttered the threats of violence in the manner put forward by the witness.

Sikhumbuzo Mpala was the next witness to give evidence after Zamani Phuti….,.

Kuno Ngwenya, who was the third State witness, also confirmed that he was known to all the accused persons and that they had known each other for a long time.

Although this witness was honest enough to say he did not witness the assault of the deceased, he provided a new dimension to the State case.

The witness was one of those who responded first to the screams for assistance by Sikumbuzo Mpala. The witness confirmed Sikumbuzo Mpala's testimony that after the act the accused persons ran away from the scene of crime. The witness testified that he accosted both Accused 2 and 3 as they were carrying each other riding a bicycle coming from the direction of the scene of crime with Sikumbuzo Mpala in hot pursuit of the two. On accosting the two, the witness swiftly moved and punctured the bicycle thereby disabling the two to continue escaping on that bicycle. The witness said that Quiet outran them but they were able to apprehend Accused 2 whom they took back to the village and tied him to where the deceased was. The witness told the court that on getting closer to the deceased he noted a wound on the deceased's shoulder and on the neck. He also noted a broken knobkerrie which accords well with the testimony of Sikumbuzo Mpala that when Quiet hit the deceased with a knobkerrie it broke and Quiet remained holding a piece of that knobkerrie. Further, the rudimentary observations noted by this witness on the deceased reads very well with the assault observed by Sikumbuzo Mpala on the evening in question. It was also the witness' evidence that when Adolf was apprehended and a search conducted on where he had been hiding, a bloodstained Okapi knife and an empty bottle of Chatteau were recovered adding further corroboration to the testimony of Sikumbuzo Mpala that he saw Adolf stabbing the deceased with a knife. More importantly, the significance of the recovery of the Okapi knife on Adolf renders false to the averment by Fanuel Notsa Dube that he disarmed Adolf of the knife that the latter had used to stab the deceased. To confirm that Fanuel Notsa Dube had also used a different knife to stab the deceased, as testified by Sikumbuzo Mpala, it is significant to note that Fanuel Notsa Dube was found in possession of his own Okapi knife whose dimensions were said to have been similar to the knife found with Adolf. Contrary to Accused 4's poorly presented defence of alibi, Kuno Ngwenya testified that on that very evening he and other villagers saw Adolf in the company of Accused 4 coming from Sikumbuzo Mpala's place. The witness said they failed to apprehend Accused 4 immediately because of interference from Adolf who continuously feigned an attack against them using a bottle of Chatteau.

Kuno Ngwenya's evidence was so spot on and corroborative of Sikumbuzo Mpala's evidence that even counsel for Accused 1 was left to suggest that Kuno Ngwenya must have discussed his testimony with Sikumbuzo Mpala; a suggestion the witness denied….,.

It is difficult really to imagine the truthfulness of the remaining accused's defences as captured in their Defence Outlines in the light of the overwhelming evidence by the State.

The Accused number 2's alleged saintly approach in disarming Temba Adolf Ndebele and attempting to push the murder of the deceased squarely on this individual was rendered so hopeless by the credible evidence of Sikhumbuzo Mpala and other State witnesses. That the blood-stained Okapi knife was recovered from where he had hidden it spoke volumes about his stout effort to deceive the court on the actual role he played in the assault of the deceased. This accused was the most visible of all the accused persons as he appeared to have played a frontline role in laying the foundation of the fatal assault that followed. He, together with Accused 3, uttered serious threats to both Sikhumbuzo Mpala and the deceased before the fatal assaults. He appeared to know what was in store for the deceased that day.

The Accused number 3's attempt to disown his own Defence Outline right in the latter stages of the proceedings did not project him in good light particularly given the flimsy reasons he gave for doing so. We found it to be inconceivable to accept the story told by the accused that his erstwhile legal practitioner had misunderstood his instruction from the accused person. It was even more curious to us that he even made an abortive attempt to disown his confirmed warned and cautioned statement which was consistent with his instructions to his erstwhile defence counsel. The accused's evidence in court was far from convincing as it could notwithstand the heat offered by the State evidence. We concluded his evidence was a hopeless attempt to deny the obvious and to simply fail to be man enough to face the natural consequences of his conduct on the day he participated in the assault of the deceased. Both his original Defence Outline and his confirmed warned and cautioned statement were consistent with the evidence tendered by the prosecution….,.

The assault on the deceased was well planned and effectively executed.

Evidence abound that the plan to fatally assault the deceased was long made and this is consistent with the prophesy of his death made by Accused 2 and 3 and repeated by Accused Three just before the assault began. The military approach with which the accused and Adolf entered the deceased's homestead was a clear indication the plan to fatally assault the deceased had been well made and nothing was left to chance. The weapons used in the assault were lethal and it is not possible to come to any other decision except to conclude that the accused could only have intended to murder the deceased in the manner they did it….,.

We have already alluded to the accused's avowed intent, as witnessed by Hlambi Mkwananzi, before going to finish off the deceased. He was also heard saying that he wanted to wipe out the Maronga family - and even burnt down the homestead. 

There can never be a clearer way of expressing an intent and a more determined way of setting about compassing that desire.

There is a striking similarity between the killing of Evans Vaughan Robert Henry and Raymond Peter Rensburg.

(i) In both cases, the modus operandi was to strike at 2200 hours at night.

(ii) Once inside the house, the perpetrator would go on to attack his/her victims on the head to cause their death.

(iii) When that was accomplished, the perpetrator would ransack the house making off with property.

(iv) In both situations, the victims were elderly white people.

I now have to consider whether these were cases of murder with actual or constructive intent or any other competent verdict.

Count 1

According to the doctor who examined the deceased, the following observations were made;

“Head - (1) forehead round wound with rough edges with a 4cm diameter.

(2) Cut wound 5cm long.

(3) Bruize on the right upper eye.

(4) Bleeding from the nostril.

(5) Face covered with blood.

Severe brain damage as a result of a blow from a heavy blunt object.

Severe bleeding also contributed to the death of the victim.”

The doctor also observed a lot of skull fragments of bones and the forehead had a broken base etc.

It was stated in S v Mugwanda 2002 (1) ZLR 574 (S)…, that:

“For a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that:

(a) Either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) While pursuing another objective, foresees the death of his victim as a substantially certain result of that activity, and proceeds regardless.”

Where a person meticulously plans a raid on a defenceless elderly couple, in the dead of the night, and proceeds to attack them the way he did, at a time when that person was not at risk or under threat, they can only desire bringing about the death of the victim.

Accordingly, the accused is found guilty of murder with actual intent in Count 1….,.

Count 3

I have already stated that there a similarities in the way the killings in Counts 1 and 3 were perpetrated. I have also cited the law on intent.

The medical evidence shows that the attack on Raymond Peter Rensburg's head caused serious wounds with a wound on the left upper part of the left eye with rough edges; deep wound on left occipital area. There was severe bleeding associated with brain damage. A heavy blunt object was used.

I can only conclude that the accused desired to bring about the death of the deceased.

Accordingly, the accused is found guilty of murder with actual intent in Count 3.

Reasons for sentence

In assessing sentence, we have weighed the mitigating factors set out by your lawyer and find that they do not come anywhere near outweighing the aggravation.

You come out as having been a sex athlete who had no respect - even for married women. You seem to have prided yourself with having many girlfriends and you told the court yourself that you were famous for your bed-hopping. In the process, you preyed on a lonely woman whose husband was away in South Africa. Not content with invading his home, you went further to appropriate to yourself his wife to the extent of arrogating to yourself the power to decide when to terminate her life. You went about executing the murder with chilling accuracy, including covering your tracks very well.

Society looks up to these courts for protection against people like you. There is a pressing need to clear the neighbourhood of people like you and to remind society that women have rights as well and should not be treated as punch bags by men.

Sentence

You are accordingly sentenced to life imprisonment.

As to the intent of the accused persons, we examine the post mortem report in which Dr I Jekenya observed the following marks of violence on the deceased's body:

“(a) Right forehead bruises.

(b) Sandy soil in the nostrils and around the mouth and between the lips and teeth.

(c) There is 4mm-wide neck groove which is deeper on the front about a centimetre below the voice box. The groove runs from the front going backwards traversely on both sides of the neck and ends at the back of the neck near the midline. It is about 2mm deep below the voice box (deepest part) and becomes more superficial as it goes backwards.”

The doctor remarked that the findings are consistent with ligature strangulation with a rope or cord.

In S v Chigwanda 2002 (1) ZLR 574 (S)…, the Supreme Court stated:

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

(a) Either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) While pursuing another objective, foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.”

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

The facts giving rise to the charge are by and large not in dispute. It is common cause that the accused is a 23 year old young man who was in the business of selling firewood and roasting green mealies. He, however, lived the life of a pest as he was entirely dependent on others for his subsistence while he squandered his money on drugs and pleasure. As at 3 January 2013, he was staying with his uncle at Number 3957 Matye Close, Budiriro 2. Fed up with the accused's exploitative habits, the uncle chased him away from his home that fateful day.

Finding himself homeless, the accused armed himself with a lethal kitchen knife he found on a kitchen rack outside a certain house and went out to rob people of their money and property. He then proceeded to Glenview 2 where he waylaid people along Patranda Road. He did not have a specific victim in mind but looked for soft targets at random. After some reconnaissance along the road he pounced on the deceased. He stabbed her in the chest and both hands thereby inflicting on her mortal injury. Thereafter, he robbed her of her cell phone, serial number 357904/04/550262/4, and two dollars. In his own words, this is what he had to say in his sworn evidence in open court:

“I was in control of my faculties during that time. As I was walking along the way I came to a place where there was a knife on a kitchen rack. I took the knife. When I took the knife, I intended to use it for stealing. I intended to scare people before I stole. I wanted to steal some money. I did not have a specific victim to target. I was just searching randomly. The reason was that I was desperate.

When I had taken the knife, I proceeded to Glenview 2. I then got into Patranda Way. I saw two women who were walking ahead of me. I then walked past them. I observed that the other woman had a pouch hanging around her neck. I was tempted to snatch that pouch. I then walked for a short distance. I then turned and went back to them. When I approached them I then snatched the pouch from the left side. I was not able to snatch the pouch because she resisted and we fell down on the road. I did not drag her considering that I was walking on the tarred road. The first witness was walking along the road and my hand actually passed in front of her as I was reaching for the deceased's pouch.

When I tried to snatch the pouch from the deceased, the string of the pouch got torn and the deceased grabbed my T-shirt as we were struggling against each other. I then pulled out the knife and stabbed her on the wrist but she did not let go. That is when I stabbed her on the shoulder and she let go. I stabbed her on the arm first and then on the shoulder. When I stabbed her on the shoulder that is when she let go of me. I then dropped the knife and ran away with the pouch.

My intention, when I stabbed the deceased, was for her to let me off so that I could escape. It never came to my mind that she could die. When I had escaped I then searched the pouch. I found that there was a cellphone, a juice card and two dollars. I then proceeded to Budiriro 1 where there were my friends. There were no bloodstains on my clothes. I did not tell anyone what had transpired.

Some police officers just came to Tichagarika as I was selling some maize cobs. I was actually surprised to see them coming. During that time I did not know why they were arresting me. When they produced the cellphone and enquired from me if I knew it, I then reflected and recollected what had transpired. I recalled how I had snatched the cell phone. I remembered the stabbing. When they informed me that the deceased had died I actually convicted myself and I was very much afraid. I did not intend to kill the deceased.

My Lord, I would want to sincerely apologize to the Court and her relatives about the incident that took her life.”…,.

Zodwa Mandiringa confirmed that she was in the company of the now deceased, Jean Chinounda, at around 9pm along Patranda Way, in Glenview 2, on their way to church, when the deceased was attacked and robbed of her cellphone in the manner described by the accused in court. They cried out for help. One Madzibaba Teddy Mandizvidza and others responded to her distress calls.

Madzibaba Teddy Mandizvidza corroborated her evidence in every material respect. There is no need to repeat his evidence….,.

After robbing the deceased of her cell phone, serial number 357904/04/550262/4, the accused pledged it to Godfrey Mafunga as security for a debt. Godfrey Mafunga, in turn, exchanged the phone with Sarudzai Munemo. Police investigations linked the cellphone to the accused who admitted pledging it to Godfrey Mafunga shortly after the commission of the murder. Godfrey Mafunga confirmed the pledge in every material respect….,.

The above evidence clearly establishes that the accused intentionally stabbed the deceased to death in the course of a robbery in the most brutish and barbaric manner. He raised no material issues in his defence as he convicted himself through his own mouth. That being the case, the conclusion that he is guilty of murder with actual intent is inescapable.

The 43 year old accused and the deceased, who was 36 years at the time of her death, had been husband and wife since 1997. The deceased lost her life due to a severe assault perpetrated against her by the accused in the evening of 24 March 2013. The charge of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was a result of the accused's conduct in cutting short the deceased's life. The accused has pleaded not guilty to the charge and offered a limited plea of guilty to the less serious offence of contravening section 49 of Criminal Law (Codification and Reform) Act [Chapter 9:23]. 

The State rejected the limited plea tendered and opted to proceed with the main charge of murder.

The facts, which are now common cause, are that on the date of the fateful assault, the accused, in the full glare of his children, assaulted the deceased on her knee with a dibble (exhibit 3). The attack was a violent one, and, because of this, the children screamed out of the homestead to alert other neighbours leaving the accused further assaulting the deceased. It is not in dispute that the accused continued to assault the deceased several times on the head and ribs with the same dibble, whose dimension was given as follows: 90cm in length with a diameter of 2cm, weighing 2,570 kgs and made out of iron. The deceased succumbed to the assault and died on the same evening on admission at Negovano Clinic, Bikita District.

The State summary, as well as the Defence Outline, were marked Annexures I and II, respectively. The accused's confirmed warned and cautioned statement was marked exhibit I, with the post mortem report marked exhibit II….,. In addition, viva voce evidence was led from Ruramai Muzenda, Rhoda Chakanyuka and Chenekayi Muyambo for the State while the accused himself gave evidence for the defence.

The evidence of Ruramisai Muzenda did reveal the deceased's appreciation of a serious matrimonial discord with the accused who seemed to have this strong conviction that the deceased was cheating on him. In addition, the evidence of Ruramisai Muzenda also projected the deceased as a responsible and caring wife, who was concerned with the accused's welfare, as evidenced by her effort to ensure that the accused had a decent meal on the evening the deceased met her fate. Ruramisai Muzenda took us through the whole episode leading to the demise of the deceased and our unanimous assessment of her evidence is that she told us all as it happened. There was no exaggeration in her testimony, and, in our view, her evidence passed the total credibility test because it was in line with the other evidence led by the State witnesses except portions of the accused's testimony….,.

All the witnesses were in agreement on the fact that the accused chased after the people who first attempted to render assistance to the deceased. We found it quite significant that all the witnesses in this case, the accused inclusive, were in total agreement on the extent of the deceased's injuries and the assistance rendered by the villagers to try and save the deceased's life.

The evidence of the accused, as regards the deceased's alleged infidelity, was given as the main reason which led to the deceased's fatal assault by the accused….,.

As a court, we were far from being convinced by the attempt by the accused to try and condemn the deceased, even in her grave, by alleging she was promiscuous during her lifetime. In an effort to expand on these serious allegations, the accused dwelt on a number of occasions but all pinned on two most pronounced ones. On the first occasion, the accused alleged that the deceased came home early in the morning around 0100 hours and he claimed to have seen her wiping out her privacy as testimony of her having been involved in promiscuous relationship on that day. Surprisingly, and we believe much to the surprise of even members in the gallery, the accused said he did not ask the deceased where she was coming from during that odd hour of the day, even when, according to him, it became clear after he allegedly saw Maseure as the suspect adulterer that morning. On the second occasion, the accused made stunning revelations when he testified to having caught the deceased in an intimate relationship with Maseure in broad daylight, and outside his homestead, a few hours after he had penned out his cattle for grazing within a stone's throw from his homestead.

We found the story by the accused, concerning the deceased's alleged adultery, as both ludicrous and embellished for several reasons and we did not allow such an exaggerated version to detain or poison our mind.

We were convinced, as a court, that if indeed the deceased had caught the deceased in such situations on those occasions, he could certainly not have taken such a casual approach like he did. The accused would probably have exploded against either, or both, the deceased and Maseure or even have committed a serious offence on those occasions because of extreme provocation. No normal or possessive man like the accused whom we had the opportunity to see and hear testify would have behaved in the manner he would want this court to believe. Secondly, the mere fact that these two incidents, prominent as they were, did not even find space in the accused's Defence Outline heightened our unanimous position that his story was concocted and palpably false. Thirdly, to imagine that the deceased, who was projected as such a caring and lovely wife to the accused through the evidence of Ruramisai Muzenda could have indulged in such an immoral conduct with Maseure literally right in the eyes of the accused did not make sense to us….,.

We therefore had not the slightest hesitation in rejecting the embellished story told by the accused….,.

If one accepts the suspicion which the accused had about the deceased, and the explanation given by the accused as the reason for the assault, one clearly sees in them a properly defined movement towards the formulation of an intention to seriously injure the deceased with reckless abandon.

This brings me to another critical aspect of this case. 

The accused, in his confirmed warned and cautioned statement, admitted to have struck the deceased with a dibble, whose dimensions I have already given earlier on. In his evidence in chief, and in cross-examination, the accused maintained his consistence as regards the manner he struck the deceased several times on the head with such a dangerous weapon. Exhibit 2, the post mortem report, confirmed that the deceased's death was caused by the skull fracture and cervical spine fracture. It is difficult to imagine what else, other than the death of the deceased, the accused could have hoped to achieve if regard is had to the weapon used and the targeted part of the deceased's body. In the court's view, the assault on the deceased was brutal, well-planned, and well-executed, starting with the strike on the knee, to immobilise the deceased, and then followed by persistent strikes on the head to ensure the assignment was neatly carried out to its logical conclusion. There can only be one verdict, and, as a court, we are unanimous in this regard, that the accused be found guilty of murder with actual intent.

On 7 July 2013, and at House Number 347 Ruponeso Street Macheke, Masvingo, the deceased, Linda Akim, lost her life as a result of stab wounds. There are contrasting explanations given by both the State and the accused as to how the deceased was fatally injured.

The State alleges the accused intentionally stabbed the deceased to death using a kitchen knife (exhibit III) whose dimensions were given as follows: 32cm in length, 0,069 kilograms (weight), with its blade being 19cm in length and the width, at its widest portion, being 3,5cm.

In denying the allegations of murder levelled against him, the accused sought to project the deceased as having been the aggressor on the day in question and raised three–pronged defences, viz;

(i) Intoxication;

(ii) Provocation; and

(iii) Self-defence.

The thrust of his defence was that as he struggled with the deceased person, who was firmly holding his testicles, he grabbed a kitchen knife, which he opportunistically picked from a push tray, and stabbed the deceased in an effort to force the deceased to let loose her hold on him.

The accused argued that as the deceased and the accused struggled, the deceased fell on her back with the accused falling on top of her, and, in the process, fatally and accidentally injuring the deceased in the abdomen.

The State case was built around the evidence of the deceased's mother, Liniva Dumbura, Juliet Mwenje, Jacob Rutanha, Sergeant Simbarashe Mufiri, Assistant Inspector Bothwell Jongwe, Assistant Inspector Mhindu and Doctor Godfrey Zimbwa. The accused's confirmed warned and cautioned statement (exhibit I), the post mortem report (exhibit II) and the murder weapon (exhibit III) were produced as additional evidence in the advancement of the State case.

The accused's case was centred mainly around the evidence of the accused himself.

The simple issue before the court was to determine and make a specific finding on how the deceased met her death in the light of the charge of murder preferred against the accused by the State….,.

Nothing much turned on the evidence of Liniva Dumba as she did not witness the murder of the deceased. Her evidence was only relevant in showing that all was not well between the accused and the deceased with whom he had sired two minor children. From this witness's testimony, the court was able to conclude that the deceased and the accused had a turbulent love relationship which culminated in the deceased openly telling the accused, in the witness' presence, that she was no longer in the relationship.

The ending of the relationship was further confirmed by Juliet Mwenje, who was also privy to some of the discussion between the deceased and the accused. Jacob Rutanha, the new suitor, also confirmed the ending of the accused and the deceased's relationship as the deceased confided in him that she had closed her chapter with the accused.

It should be noted that, other than cohabiting, the relationship between the deceased and the accused had not been formalised. Its ending did not, therefore, require any formalities, and, from a legal point of view, the indication of its ending by the deceased was sufficient.

The evidence of Liniva Dumba also spoke to the aggressive nature of the accused towards the deceased during their time as lovers. This, again, was confirmed by Juliet Mwenje in whom the deceased would confide and appeared to have been fairly close to.

We also did not miss the fact that Liniva Dumba had little respect for the accused whom she, throughout the proceedings, referred to as “Kuda”. It is not usual that a potential mother in law would address a man with whom her daughter has children by their first name. Perhaps the witness' position was understandable if regard is had to the undisputable fact that her daughter, the deceased, died at the hands of the accused….,.

Juliet Mwenje is one of the most crucial witnesses in this matter in that she had the misfortune of actually witnessing the assault on the deceased by the accused person. Because of her close relationship with the deceased, and the fact that the deceased died in her room, the need to exercise great caution in dealing with her evidence remained upper most in the mind of the court. Juliet took us through the conduct of the accused and the deceased on the fateful day. The witness explained how the accused had been to her house earlier on and how he ended up playing with his young child until the child retired to bed. She explained, further, the exchange of a telephone message between the deceased and her newly found boyfriend, Jacob Rutanha and how eventually the accused left the place with Jacob Rutanha being the first to leave followed by the accused himself.

We have no doubt in our minds that Juliet Mwenje, despite her closeness to the deceased, gave us a credible account of what happened. She must be believed when she gave an account of what eventually happened when both Jacob Rutanha and the accused returned to the house as her story partially got support from Jacob Rutanha as well as from the accused's aggressive conduct in gaining entry into the house, after breaking the window pane, following denial of entry into the room.

Juliet Mwenje was clear that by the time the accused entered the room Jacob Rutanha had already bolted out of the room. If this piece of evidence by Juliet is accepted, as it should be, then it creates a serious problem with the accused's story. This is because the accused's defence is built around the alleged aggressive conduct of the deceased in her determination to protect Jacob Rutanha.

In accordance with the evidence of Juliet Mwenje, and Jacob Rutanha himself, we have no hesitation in making it as a specific finding of this court that when the accused violently entered the room, Jacob Rutanha, who had correctly read the situation, had bolted out leaving the deceased at the mercy of the accused. It is our position that Juliet Mwenje and Jacob Rutanha had no reason to lie or mislead the court on this point. Our finding accords well with the violent conduct of the accused, even before he got into the house, coupled with his demand before entry into the house that Jacob Rutanha should get out of the room. Indeed, it would have been folly on the part of Jacob Rutanha to have remained in the room given the aggressive conduct of the accused. If we accept, as we are compelled to because of the weight of evidence, that Jacob Rutanha had already bolted out of the room, then we must also accept that the accused did not have a chance to grab, or hold, Jacob Rutanha by his pair of trousers. It consequently follows that the accused was clearly not telling the truth when he alleged that the deceased head butted him and held his testicles in an attempt to force him to let go of Jacob Rutanha. That story was a concoction and our finding in this regard collapses the defence of self-defence sold to us by the accused….,.

As Juliet Mwenje stood by the door, she saw the accused stabbing the deceased as the deceased desperately sought to wriggle out of the accused's grip.

But, as things stand, we all know that this was not the stab wound that took the deceased's life according to the post mortem report, coupled with the evidence presented to us by Doctor Godfrey Zimbwa.

The credibility of Juliet Mwenje's evidence is further cemented by her indication to the court that she did not witness how the accused delivered the fatal stabbing. If she wanted, she could have easily told the court that she saw the accused delivering this decisive stab wound because she was the only witness present.

Juliet Mwenje said that after having witnessed the accused stabbing the accused at the back she panicked and ran into the dining room and stood hopeless behind a curtain thus depriving her of the opportunity to witness further assaults on the deceased.

It was, however, her undisputed or unchallenged evidence that as she stood behind that curtain she heard the accused uttering the following words: “That prostitute has died. I have cut it all over. Today I want six people dead.” Juliet Mwenje went on to tell the court that when the accused pulled the curtain he came face to face with her and uttered the following words: “You are another prostitute that I am after.”

It was further her unchallenged evidence that when the accused went back to get the knife she shot herself out through the window and ran away to try and lodge a report to the police station with the help of her brother.

It is our view that the utterances by the accused concerning the deceased fits very well into the evidence of Doctor Zimbwa when he noted that the fatal wound was a stab and a drag of 20cm across the abdominal wall of the deceased and that to him it suggested that this was a deliberate action on the part of the accused. The utterances by the accused person, after the stabbing, clearly suggest, in our view, that he had successfully achieved his objective. A person who has been provoked or acting in self-defence does not go about bragging having killed the victim unless he has sought to kill or murder the victim….,.

I must now proceed to deal with the three defences raised by the accused in this case in the light of the evidence by the accused and juxtaposing same with the rest of the evidence.

I propose to deal first with the accused's defences of provocation and self-defence coupled with the accused's averment in paragraph 4(vi) of his Defence Outline when he avers that the deceased was accidentally stabbed on her stomach. This is the stab wound which the doctor deemed to have been fatal…..,.

In any event, all these defences were shot down by the accused person himself the moment he told the whole world about his desire to bring an end to the deceased's prostitution and his bragging after he had accomplished his mission….,.

We are satisfied beyond doubt that the accused deliberately attacked the deceased with the intention to cause fatal injuries. He achieved his objective. There can only be one finding in such circumstances.

The 19 year old accused was charged with the crime of murder.

It being alleged that on 9 January 2013, at Elliot Ncube's homestead in the Bazha area of Matobo, he did wrongfully, unlawfully and intentionally kill and murder Evidence Thabani Ncube a male adult in his lifetime therebeing.

When the charge was read to him he told the court that he admitted killing the deceased but had no intention to kill him. A plea of not guilty was then entered on his behalf….,.

Viva voce evidence was led from Dorcas Ncube. 

Her testimony was that she lived at Elliot Ncube's homestead in the Bazha area of Matopo. She knew the deceased as someone who had been hired by someone from Mapaneni to look after his cattle. The cattle had been brought to the homestead of Dorcas Ncube where the pastures were better than Mapaneni. The deceased arrived in July 2012 with the cattle. The accused is her nephew – the son of her older brother. On 8 January 2013, during the night, around midnight or past midnight, the accused went to her sleeping hut and knocked at the door three (3) times but she did not answer. Having got no response, the accused went to the bedroom hut of her daughters and woke them up. On arrival at the bedroom hut of the witness, the accused knocked at the door again. This time the witness asked who was knocking and the accused identified himself by the name Jeconia. The witness asked the accused why he was waking her up during the night. His answer was to the effect that he had been having trouble or fighting with the deceased for sometime. He then asked her to come out which she did.

The accused then went to the deceased's bedroom hut. He then shouted that the deceased should come out or else he would set the hut alight and burn him in the hut with his knobkerries (Church ceremonial knobkerries).

Dorcas Ncube said she then asked the accused what the deceased had done to deserve that. The accused said the deceased knew what wrong he had done. He went on to complain that the deceased had taken his (accused's) home and turned it into his own. He alleged that the deceased was having sexual relations with his wife. Further, the deceased had turned his home into a gambling school and had turned his wife into a post man. He said, unbeknown to the deceased, his wife used to tell him what the deceased did. He furthermore complained that he did not pay money for his wife in order to share her with the deceased as if they were brothers.

I pause to observe that it was highly unlikely that his wife would have told him that the deceased was having sexual relations with her. Further, it is not true that brothers share their wives.

The witness told the accused that she had heard his story and advised him that the issue would be dealt with the next morning. But the accused would have nothing of that. He started harassing the deceased who was outside by that time. He wanted him to answer to the allegations. The deceased apologized to the accused and so did Dorcas Ncube, on behalf of the deceased. 

The accused turned and walked away as if he was going away but “U” turned and went back to the deceased.

This time, the accused alleged that the deceased had made a clicking sound with his tongue in disrespect of him. He accused the deceased of disrespecting him. He went on to allege that the deceased had told his wife that he (accused) did not even know the cost of a pack of playing cards.

I pause to observe that Dorcas Ncube, who was present, did not hear the deceased making the clicking sound with his tongue in disrespect. All she heard was the deceased saying; “I apologise my brother” as the accused was walking away.

After saying the deceased had told his wife that he did not know how much a pack of playing cards cost, he struck the deceased with an open hand. The witness said she rebuked him and told him to leave the deceased alone. That fell onto deaf ears. Instead, the accused took the attack to higher level by striking the deceased with a clenched fist this time. The deceased told the accused to leave him alone and was getting ready to fight back. But suddenly, the deceased began to run away as if he had seen something in the accused's possession.

I pause to observe that the accused himself told this court that when he realized that the deceased was getting ready to fight back, he drew out the knife, exhibit 6. In fact, the accused said he had to draw out the knife because he knew that if the deceased, who was older that him and had a bigger body built, had fought back, he (accused), would come out of the fight second best (he would be over powered).

Dorcas Ncube, herself, said she did not see the knife as it was dark. She believed he had seen the knife that is why he ran away with the accused in hot pursuit. He ran towards her bedroom hut whose door she had left ajar. The accused caught up with deceased by the doorway and a struggle ensued at the doorway. The deceased fell into the hut while the accused remained standing by the door outside the hut. When she got there, the deceased was leaning against a table breathing heavily. He had been injured and was bleeding profusely. The accused had stabbed him with exhibit 6 and there was a pool of blood.

When Nomazwe Ncube asked the accused why he was killing the deceased, the accused told her that she would die for him. As the accused stood by the door outside he threatened to kill anyone who would try to touch him. So everybody was scared of touching him - let alone arresting him.

The witness told the court that the deceased was chased by the accused for a distance of about 12m. She was emphatic that the deceased did not make any clicking sound in annoyance. She was also emphatic that the deceased did not insult or swear at the deceased.

The accused rendered no assistance when the deceased was being taken out of her bedroom hut.

The witness concluded her evidence in chief by telling the court that she had no reason to give false evidence against the accused. The accused is her nephew and there was no bad blood between her and him. She told the court that the accused had been drinking and appeared moderately drunk.

The witness was cross-examined at some length but her story remained clear and intact and easy to follow….,.

The witness also told the court, under cross-examination, that the deceased did not respond to any of the accusations the accused was making against him - including the allegation that he was sleeping with the accused's wife. The witness, fairly, told the court, under cross examination, that the accused did not open the deceased's bedroom hut and drag him outside. She reiterated that the deceased came out when the accused threatened to burn him and his church knobkerries in the house if he did not come out….,.

The second witness was the accused's wife whom he married in November 2012, at the age of 16 years. It was her evidence that she still loved her husband and would have no reason to give false testimony against him.

It was her testimony that a month after she was married, i.e. December 2012, the deceased approached her and proposed love to her. She told him that she was already married and rejected his proposal. He went away but returned after some days and made his proposal again. He got the same response. Undeterred by the negative responses, the deceased approached her for the third time and made the proposal again. This time, he told her that he intended to elope with her to his home area at Maphaneni.

Worried by the deceased's persistence, she told her husband (accused) about the deceased's persistent advances and suggested that the accused should reprimand the deceased. The accused assured her that he would do so. She, however, did not know if the accused did as promised.

Her evidence was that all the three love proposals were made before Christmas 2012. As if that was not enough, on 7 January 2013, the deceased went to the accused's home, in the absence of the accused, with a pack of playing cards. While he was there, he started playing cards with the accused's wife and the accused's sister, Sibonginkosi. The accused arrived and found a game of cards in progress. He sat down. The accused's sister, Sibonginkosi, asked the accused's wife to dish food for the accused who said she should not as he was going to do it himself when he wanted to eat. At that point, the deceased went out leaving the cards in the possession of the witness and Sibonginkosi.

The accused asked for the cards from the two girls which they handed over to him. The deceased returned shortly after and called the witness to given him back his cards. She told him that the accused had taken them. The deceased asked for his cards from the accused who said he would give them to him but did not give him that day until he left.

The next day, the deceased returned to collect his cards in the morning which the accused gave to him.

I pause to observe that the deceased's behaviour was provocative indeed. After proposing love to the accused's wife, and the proposals were rejected, he still went to the accused's home in his absence to play cards with his wife. The deceased did not only go to the accused's home to play cards once but he did so twice.

On 8 January 2013, the accused went to Gobalitombo area and only came back home at night. On his arrival, he called out his sister, Sibonginkosi, and asked her to cook sadza for him. Sibonginkosi, however, called the witness to do it.

I make an observation that the accused did what was unusual. It is difficult to understand why he would wake up his sister to cook for him when his wife was there. He seems to have had something against his wife at that time.

The wife said she woke up and went to the kitchen to cook for the accused. She did not see the accused as he had left. She started cooking, and as she was about to finish cooking, she heard the last witness, Dorcas Ncube, pleading with the accused saying; “Jeco, let go of Thembani.” The witness then told the accused's sister, Sibonginkosi, about what she had heard. Sibonginkosi then ran towards Dorcas Ncube's homestead while the witness continued cooking. After she had finished she retired to bed.

The witness did not see the accused when he returned that night. He did not talk to her. He only asked Sibonginkosi to cook food for him.

She denied that she gave him the message to the effect that the deceased had come to leave a message that he should go and see the deceased on his arrival. It was her evidence that there was no truth in that suggestion.

This court makes a specific finding that the suggestion was false. The deceased never went to leave such a message with the accused's wife. The wife had no reason to tell lies to this court. The suggestion is ipso facto rejected.

The witness was briefly cross examined. 

It emerged, in cross examination, that she only told the accused about the deceased's proposal after the third occasion, and that was a few days before the fateful night. When he took away the playing cards after finding the deceased playing with his wife and Sibonginkosi he was aware that the deceased had unsuccessfully proposed love to his wife on three occasions.

Although this witness was not talking clearly as she testified there was nothing to suggest that she was not being truthful. It was her evidence that she still loved her husband and would have no reason to tell lies against him. She is worth to be believed and this court accepts her evidence.

After this witness, the State closed its case….,.

The accused…, testified himself.

He was a bad witness who is not worth to be believed.

His suggestion that he went to wake up the deceased after midnight because he had left a message with his wife that he should go and see him is false. Further, his story that he armed himself with exhibit 6 because of the invitation by the deceased is equally false. The truth is that after getting some Dutchman's courage from the alcohol that he had been drinking he decided to go and fight with the deceased and armed himself with the knife.

The accused's suggestion that the reason why he returned to assault the deceased was because the deceased made a clicking noise with his tongue in annoyance and swore at him by his mother's clitoris is also false. Dorcas Ncube, who was there, did not hear anything of that nature. All that the deceased did was to apologise. The accused's suggestion is rejected since it was false. The Court finds that the deceased did nothing of that sort.

Furthermore, his accusation that the deceased was sleeping with his wife was false. The wife said she reported to him that the deceased had proposed love to her not that he had slept with her. In any event, it is highly unlikely that she would tell him that the deceased was sleeping with her and had done so on three occasions.

There was a feeble attempt to deny that he chased the deceased as he ran towards the bedroom hut of Dorcas Ncube. The truth is that after he drew out the knife, the deceased ran away with the accused in hot pursuit and stabbed him at the doorway of Dorcas Ncube's sleeping hut. The accused told the court that he aimed the blow with the knife at the upper arm of the deceased but the knife slipped and landed below the scapula. That does not make sense at all. A knife cannot slip and go upwards. 

He was being untruthful.

The truth is that he aimed his blow at the point it landed. This court rejects the accused's evidence. Wherever it conflicts with the evidence of the State witnesses, the court prefers that of the State witnesses which was well presented.

What is the accused guilty of?

The accused used the knife, exhibit 6, to stab the deceased. When he took the knife from his home, he was going to wake up the deceased, well after midnight, and use the knife to assault the deceased. The accused knew that if he attempted to attack the deceased using his hands he would be overpowered. He said the deceased was older and had a bigger body built.

On getting to the deceased, he first struck him with an open hand. The deceased pushed him away. He again advanced towards him and struck him with a clenched fist this time. The deceased pushed him away for the second time. This time, the accused had angered him. He pushed him away and prepared himself to fight back. This is the stage that the accused wanted, he immediately drew out his knife which he knew was double edged. He knew the edges were very sharp and so was its tip.

The double-edged sharp blade was 16cm long and 2cm at its widest point. It was just as long as a spear blade. The accused was well aware of all this because it was used at his home.

The knife is indeed a lethal weapon. If pushed into the upper body of a human body death would invariably result, as the upper part of the body houses all the delicate internal organs i.e. the heart, liver and lungs. That part of the body is very vulnerable indeed.

If a person plunges a spear into the upper body of a human being death is substantially certain to result. Similarly, when a knife, like exhibit 6, is pushed into the upper part of the body, there is a substantial certainty that death will follow.

The accused aimed his blow with exhibit 6 at a point 40cm from the top of the head on the left back 2cm from the midline. Severe force was used and the knife went through the muscles at the back into the chest cavity and perforated one of the chambers of the heart causing a 4 x 2cm injury. The accused had the subjective foresight of substantial certainty of death resulting from his actions but continued all the same. 

Counsel for the first appellant indicated that he had no meaningful submissions to make against conviction and sentence. He indicated that the facts surrounding the commission of the offence were largely common cause. They supported the decision of the court a quo on conviction and sentence. Counsel for the second appellant had suggested, in the heads of argument that the appellants acted out of provocation because the deceased had set their properties on fire. During the hearing, he abandoned the submission and conceded that the facts found by the High Court supported the decision that the appellants committed murder with actual intent to kill.

The facts are common cause.

The deceased was the elder brother to the second appellant. The first appellant is the second appellant's nephew. He has his own homestead near that of the second appellant's parents. Sometime in 2008, the deceased set on fire the first appellant's hut. He also burnt a hut at his grandparents' homestead which had the second appellant's movable property. The deceased was convicted of arson and sentenced to four years imprisonment. He came out of prison on 16 July 2012.

On 17 July 2012, people gathered at the second appellant's father's homestead for a traditional ceremony. The deceased arrived at the homestead. A few minutes later, the first appellant also arrived at the homestead. The actual ritual took place at about 8.30a.m. After the ritual, the deceased left the homestead. As the deceased was a distance from the homestead, the appellants started running after him. They were armed with axes.

The first appellant was armed with an axe, the blade of which was 20cm long and 10cm wide. The length of the handle was 66cm whilst the whole axe weighed 1.3kgs. The second appellant was armed with an axe, the blade of which was 13.5cm long and 5cm wide. The length of the handle was 40cm. The whole axe weighed 360 grams.

The appellants were seen by the first appellant's mother running after the deceased. She alerted Siambule Ndebele who followed them. Siambule Ndebele met the appellants on the way. The first appellant threw his axe away. Siambule Ndebele did not talk to the appellants. He proceeded in the direction they had come from and found the deceased lying dead in a pool of blood.

What had happened is that upon catching up with the deceased, the appellants attacked him. He was armed with a catapult. It appears that as the deceased ran, the second appellant struck him on the right side of the face with his axe. The deceased ran a few metres. He was powerless and fell to the ground. The second appellant delivered a second blow with the axe on the right side of the face. The first appellant delivered a third blow on the right side of the deceased's face.

The post-mortem examination revealed that the deceased sustained the following bodily injuries:

(a) 12cm long and 2cm wide and 3cm deep wound with fractures running just below the right eye starting near the right ear and ending at nasal bridge (nose). The underlying facial bones were severely fractured.

(b) Starting from the starting point of wound (a) above there was a 5cm long, 1.5cm wide and 2.5cm deep wound running obliquely downwards across the right maxillary region (cheek bone) to a point below the nose. There were fractures of the bones associated with the wound.

(c) There was a 5cm long and 2cm wide wound running along the lower jaw to the chin.

The cause of death was found to be hypoxia and multiple facial fractures.

The injuries were intentionally inflicted on the deceased by the appellants acting in common purpose to kill him. There is no doubt that the appellants used severe force to inflict the fatal injuries. The finding by the court a quo that the appellants wanted to kill the deceased cannot be faulted. It is supported by the facts found proved. The facts show that the appellants armed themselves with axes which they intended to use on the deceased. They were not in the position of people in possession of axes for innocent purposes. The appellants armed themselves with the dangerous weapons for the specific purpose of hunting the deceased until they caught up with him to execute their intentions. The deceased was struck from behind on the right side of the face. When he fell a few metres from the first blow, the appellants ensured that they left him dead. They knew he was alive at that point in time. They, nonetheless, delivered further severe blows on the deceased. He died on the spot. These facts prove nothing but murder with actual intent to kill the deceased. 

I now move on to deal with the guilt. What is the accused person guilty of?

Actual intention to kill is defined as follows:

a) That the accused desires to bring death. Death is his aim and object.

b) That the aim or object of the accused person is not death but in the process of engaging in some activity foresees death as a substantially certain result of that activity and proceeds regardless as to whether this consequences ensures as per FELTOES's Guide to Criminal Law in Zimbabwe…,..

See also S v Mugwanda SC19-02.

Our view is that the accused person queried the deceased's conduct, the deceased then uttered words to the effect of challenging the accused on what he would do about it and then walked away. At the time the accused confronted the deceased', the deceased had already stopped the unlawful attack on the accused's brother and was walking away. The accused then came face to face with the deceased and then pretended to be walking away only to turn back, pull out an okapi knife, and stab the deceased on the back side of the neck. The weapon used, the amount of force exerted, as inferred from the size of the wound, which the post mortem gives as 2 x 1 x 7 cm, and the injury to the spinal cord, on an unarmed deceased who had ceased the attack and was in fact walking away, can only lead to one conclusion - that the accused's conduct was clearly the one which, whilst death was not be the aim and objective, in the process of engaging in this activity the accused foresaw death as a substantially certain result but nonetheless proceeded regardless of the consequences. A 7cm laceration at the back of the neck which goes in and injures the spinal cord can only be expected, as a matter of certainty, to be fatal. 

The facts are these.

The appellant, who was forty-seven (47) years old at the time of the commission of the offence, and the deceased, LIFAQANA MKANDLA, were cousins. They lived in Makhekhe Village, Gomora area, in Lupane.

On 7 July 2002, at about 1400 hours, the appellant summoned the deceased to his homestead. The appellant suspected that the deceased and his younger wife, SETTY SIBANDA, were having an affair.  The deceased came in the company of his younger brother, NKOSILATHI.

They all had lunch after which the appellant invited his younger wife and the deceased into his bedroom.  In the bedroom, the appellant had an axe. The appellant asked for money from the deceased who retorted saying that he had given him money on previous occasions which had not been paid. Setty Sibanda weighed in saying that they owed the deceased money and other items. She suggested to the appellant that it was unwise to continue borrowing money from the deceased. This did not go down well with the appellant. The appellant then accused Setty Sibanda of supporting the deceased because they were having an affair. 

The two denied the allegation.

The appellant got infuriated by their denial and picked the axe. He demanded that the deceased should confess to the affair before he killed one of them. The appellant attempted to strike Setty Sibanda with the axe before she ran out of the bedroom. The deceased caught hold of the axe giving rise to a wrestle for control of the axe. As the two wrestled out of the bedroom Nkosilathi snatched the axe from them.

The deceased went and sat by a tree pleading his innocence and asking that the matter be referred to the police or the kraal head. As the deceased was about to leave the homestead, the appellant ran to his senior wife's bedroom whence he armed himself with an axe and a knife. He swore that he had resolved that morning to kill someone by 3pm.

The appellant met the deceased as he was walking in the direction of his homestead. Accusing the deceased once more of sleeping with his wife, the appellant stabbed him once on the chest by the heart.  The deceased ran for about 100 metres before he collapsed and died….,.

At the trial, the appellant alleged that the deceased first tried to strike him with the axe in the bedroom which he said the deceased got from Setty Sibanda. He said after blocking the blow Nkosilathu took the axe from the deceased. According to the appellant, the deceased struck him with clenched fists before he stabbed him. He said he tried to stab the deceased on the arm but missed and stabbed him on the chest.

The court a quo found the State witnesses credible and rejected the version of the appellant of acting in self-defence.

The unanimous view of the court is that the court a quo was correct. There is no basis on which the finding of the court a quo can be impugned.

The court a quo found that the allegation that the deceased was having an affair with Setty Sibanda had no substance. It was highly improbable that the appellant would have had lunch with the deceased and his brother and thereafter proceed to ask for money from the deceased if the appellant believed that the deceased was having an affair with his wife.

On the issue of acting in self defence, the court a quo found that the appellant was the aggressor and that the deceased posed no threat to him. 

In fact, apart from the allegations in the Defence Outline, there was no evidence that the deceased ever armed himself to attack the appellant. The fact that the blow was directed at the upper part of the body suggests that the attack was sudden and the deceased was unprepared to defend himself.

On these facts, counsel for the appellant correctly conceded that the verdict of guilty of murder with actual intent to kill was unassailable. 

The court agrees with her.

Counsel for the appellant also conceded that the court a quo's finding that there were no extenuating circumstances is correct. The facts show that the appellant pre-meditated the assault on the deceased.  He had entertained an irrational belief that there was a love affair between the deceased and Setty Sibanda.

The rest of the factors considered by the court a quo are aggravating circumstances. There was no misdirection on the part of the court a quo.

The appellant was charged with the murder of Kelens Mudimba on 28 December 2012 along a footpath leading from DRC Empumalanga, Hwange to Chibondo Village, Hwange. The appellant was convicted by the High Court of murder with actual intent to kill and sentenced to death.

Counsel for the appellant indicated that he had no meaningful submissions to make in respect of the conviction.

The concession was properly made.

The facts of the case are these.

The appellant was twenty-five (25) years at the time of the commission of the offence. He resided at number 1459 DRC, Hwange. The deceased was his common law wife and was aged twenty-two (22) years at the time she met her death. On the day in question, at about 12.00 mid-day, the appellant and the deceased had a misunderstanding as they were walking along a footpath from Chibondo Village to DRC Empumalanga, Hwange. The deceased wanted to terminate their union. An argument ensued and the appellant struck the deceased several times with stones on the side of her head. He also stabbed her with a knife once on the left side of the chest. The deceased died on the spot as a result of the assault.  The appellant phoned one Blessing Matshayani who is married to the deceased's sister. He told Matshayani that he killed the deceased and indicated the place where the body could be found. Mr Matshayani then telephoned the deceased's aunt who in turn advised the deceased's father.

The deceased's father went to the scene and found the deceased lying in a pool of blood. He made a report to the police who attended the scene. John Mutyavaviri, a member of the Zimbabwe Republic Police observed that the deceased's clothes were soaked with blood. Her head was lying in a pool of blood. She had a deep cut on the back of the head. There were other deep cuts behind the right ear, a deep cut between the right ear and the right eye, and a deep cut on the forehead. There was a stab wound on the left side of the chest. The deceased's head had been crushed and depressed inwards.  There were numerous blood stained stones near the deceased's head. He recovered a blood-stained kitchen knife near the deceased's body. He conveyed the deceased's body to Hwange Colliery Hospital mortuary. On 31 December the deceased was taken to United Bulawayo Hospital for a post-mortem examination.

The postmortem examination revealed the following injuries:

(a) A stab wound on the left side of the chest which was 2cm long and 1cm wide situated 6cm from the left nipple and 13cm from the midline and 13cm from the clavicle bone;

(b) A compound fracture of the skull on the right frontal parietal region;

(c) All cranial bones were fractured leading to severe brain damage.

(d) Both fractured jaws.

It was concluded that she died of brain damage, multiple skull fracture, and subarachnoid haemorrhage.

It is clear from the injuries that heavy blunt objects were used to crush the deceased's skull. It was also obvious that a sharp object was used to stab the deceased. There can be no doubt that severe force was used to inflict the wounds on the deceased. It is beyond doubt that the stab wound was inflicted whilst the deceased was facing the appellant. 

Death was clearly intended.

On 28 December 2012, the appellant handed himself over to the police at ZRP Hwange Charge Office.  He made a confirmed warned and cautioned statement admitting that he killed the deceased. He indicated that he killed the deceased because she no longer wanted to stay with him as his wife.

On these facts, the trial court found the appellant guilty of murder with actual intent to kill.

On 29 September 2004, the High Court found the appellant guilty of murder with actual intent to kill. The court a quo did not find extenuating circumstances and sentenced the appellant to death.

The appeal against conviction and sentence is, by operation of law, automatic.

The legal practitioner who represented the appellant at the trial submitted that he could not advance any facts as extenuating the appellant's moral blameworthiness. Counsel who represented the appellant on appeal also indicated that he could not advance argument on facts which could be said to have extenuated the appellant's moral blameworthiness.

The facts on which the High Court found the appellant guilty of murder with actual intent to kill and sentenced him to death are common cause.

The appellant was aged 19 years at the time of the commission of the offence. The deceased was his father. He was aged 71 years. They lived together at Maushe Village under Chief Njelele in Gokwe.

The appellant knew that his father had sold a beast belonging to his aunt for Z$14,000. He knew, that, on 3 November 2001, the deceased would leave home at 0100 hours to catch a bus to Bulawayo to deliver the money to the owner of the beast.

The deceased left his homestead at 0100 hours to walk 15km to the bus stop. Little did the deceased know that the appellant was following him as he walked along the footpath that night.

The appellant had decided to attack the deceased and rob him of the money he had on him.

He armed himself with an axe and stalked his father for three kilometers before he pounced on him and struck a severe blow with the axe on the centre (parietal region) of the head. The deceased fell to the ground and the appellant delivered further blows on the deceased's head.

When the deceased was rendered unconscious, the appellant searched his pocket and took Z$5,400 before disappearing into the bush.

The appellant hid the axe in the bush.

The axe weighed 1.350kg. Its blade was 12.5cm long and 8cm wide.

When he got home, he hid the money in the grass thatch in his bedroom.

The deceased did not die on the spot where the appellant attacked him. He remained there, spot, until 11am when he was found by two young girls who were on their way to the bus stop. The deceased died at his home that afternoon. He had been taken there in a scotch cart by his brother.

The post-mortem examination revealed that the deceased suffered the following bodily injuries:

(a) A compound fracture on the left parietal (centre) region of the skull.

(b) An open fracture on the left parietal region of the skull about 7cm wide.

(c) A depressed fracture on the left parietal region of the skull about 4cm long.

(d) A puncture wound on the right parietal region of the head about 3cm wide.

(e) Bruises on the left and right forearms.

The injuries on the head were delivered with severe force - they caused the deceased's death.

The appellant said he could not tell with which side of the axe he struck the deceased's head.

It is clear from the nature of the injuries that he used both the sharp edge of the blade and the back of the axe.

In the morning of 4 November 2001, the appellant joined a group of locals who followed the footprints of the assailant from the scene of the crime. When the foot prints ended at his homestead, suspicion grew that the appellant was the killer.

He confessed to relatives who gathered to ask him about the death of his father.

The appellant voluntarily indicated to the police where he had hidden the axe used to kill the deceased. He also indicated where he had hidden the money he took from the deceased's jacket pocket.

At the trial, the appellant suggested that he was in the company of the deceased, escorting him to the bus stop. He said he struck the deceased with the axe on the head because the deceased had struck him with metal rods which were wrapped in a paper. The reason for the alleged assault by the deceased was that he had refused to plough the fields with Tinashe Nyandoro.

On the money, the appellant said that when the deceased lay on the ground injured, he told him to take the money from the jacket pocket and give it to his sister.

The court a quo rejected the appellant's story as a fabrication.

The appellant had not mentioned Tinashe Nyandoro in the confirmed warned and cautioned statement recorded four days after the incident.

He could not say why he was armed with the axe if he was escorting the deceased to the bus stop. He could not say where on the body the deceased struck him with the metal rods. The alleged metal rods were never found.

As the appellant admitted, that, after the deceased was felled by his blows on the centre of the head with the axe, he was rendered powerless, the metal rods would have been found at the scene by the two young girls who found the deceased lying on his back.

Under cross-examination, the appellant said that the deceased told him to take the money to use as bus fare to go to his sister.

The trial court found, as a fact, that the appellant robbed the deceased of his money. It also found that he assaulted the deceased with actual intent to kill him.

Counsel for the appellant indicated that he was unable to point at any misdirection by the court a quo in its decision on the guilt of the appellant.

A perusal of the record of proceedings shows that the learned Judge carefully considered all the evidence and argument presented to the court. He evaluated the credibility of the witnesses and came to the conclusion that the State had proved, beyond reasonable doubt, that the appellant committed murder with actual intent to kill and robbery.

Counsel for the appellant also indicated that he was unable to point at any misdirection on the part of the court a quo in deciding that there were no extenuating circumstances justifying the imposition of a sentence other than death.

The court a quo adopted the two-pronged approach:

The learned Judge considered the mitigating factors and weighed them against those which aggravated the appellant's moral blameworthiness: see The State v Phinias 1973 (1) RLR 260; The State v Jaure 2001 (2) ZLR 393 (H).

The learned Judge took into account the fact that the appellant was aged 19 years at the time of the commission of the offence. He was aware of the principle that youthfulness is ordinarily regarded as an extenuating circumstance provided the acts committed are consistent with immaturity.

The learned Judge came to the conclusion that aggravating factors far outweighed mitigating features. He said:

“This was a brutal attack on the head using a big axe on a 71 year old defenceless man. Several blows were aimed and landed on the head. The motive was robbery. After the assault, the accused took the cash and left the deceased seriously injured, bleeding, and unable to walk on account of the injuries. This was a planned robbery and attack on his father in the early hours of the morning.”

The careful planning and the resolve to attack his own father in the manner he did, for money, and leaving him for dead, are factors which show that the actions of the appellant were not consistent with youthfulness.

There has to be very strong mitigating factors for a person who commits murder in the course of robbery to escape the death penalty.

The robbery always aggravates the accused's moral blameworthiness.

Not only is the violence perpetrated to overcome resistance to the taking of the deceased's property, the deceased is often beaten to death to avoid identification and detection of the crime.

The decision by the trial court, that there were no extenuating circumstances, cannot be faulted.

The appeal against conviction and sentence is dismissed.

On 28 January 2015, the appellant was arraigned before the High Court sitting at Gweru on a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], (the “Criminal Law Code”).

The allegations against him were that on 20 September 2013, at Gore Village, Chief Nyamhondo, the appellant had caused the death of Chipochashe Ndlovu, a female juvenile, by forcibly having sexual intercourse with her, and assaulting her all over her body with an unknown object, intending to kill her or realising that there was a real risk or possibility that his conduct might cause her death.

The appellant tendered a plea of not guilty to the charge. He was convicted of murder with actual intent to kill the deceased and was sentenced to death.

For a trial court to return a verdict of murder with actual intent, it must be satisfied beyond a reasonable doubt that;

(a) Either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) While pursuing another objective, forsees the death of his victim as a substantially certain result of that activity and proceeds regardless.

On the 24^th of August 2012, and at Jethro Ndlovu's homestead in Mahosangwe Village, Matobo, the deceased, Ncedisani Sibanda, lost her life as a result of assault by the accused person. 

Exhibit 3, the post mortem report, gave the deceased's cause of death as subarchnoid haemorrhage and skull fractures as a result of a violent attack on the deceased.

It is not in dispute that the attack on the deceased was orchestrated by Philani Maphosa who stands as the accused in this case.

It is also common cause that on the day in question the deceased and the accused had a misunderstanding whilst at the deceased's place of residence. As a result of that misunderstanding, the accused armed himself with a hoe (which turned out to be the murder weapon) and used it to severely assault the deceased leading to her untimely death.

The background to the State case is that on the 21^st of August 2012, the accused picked up a love letter which the accused suspected the deceased's husband, one Jethro Ndlovu, had written to the accused's wife, Siboniso Dube. After making abortive attempts to set up a meeting in the village to deal with this matter, the accused ended up taking the letter to the deceased's homestead intending to discuss the issue with Jethro Ndlovu. On one such visit, Jethro's wife confirmed that the paper on which the letter was written had been removed from the family diary and that the handwriting on the letter resembled that of the deceased's husband.

On the fateful day, the accused proceeded to the deceased's homestead intending to confront Jethro Ndlovu about his adulterous relationship with his wife but found Jethro absent. The accused had a misunderstanding with the deceased which led to the accused severely assaulting the deceased leading to her death.

Before the fatal assault, the accused was heard uttering words to the effect that he was going to leave Jethro Ndlovu without a wife since the latter had destroyed his marriage.

Whilst agreeing with the bulk of the State case, the accused's defence was to the effect that he attacked the deceased after she had insulted him by uttering words to the effect that the accused was supposed to 'keep his wife under leash.' The accused said the deceased uttered these words in Sindebele language by saying “ubobophela inja yakho” meaning 'keep your dog leashed.'

The accused said these utterances provoked him and led to the assault that claimed the deceased's life.

The enquiry in this case was limited to the court endeavouring to find out the exact circumstances leading to the deceased's death bearing in mind the defence of provocation raised by the accused person.

I propose to deal first with the evidence led and accepted by this court before proceeding with the defence of provocation which the accused sought to take refuge in.

The State case comprised of viva voce evidence from Brighton Dube who was a male juvenile at the time of the murder and who regarded the deceased as his sister-in-law. The second witness was Siboniso Dube, the accused's wife, and, finally, the State led from the deceased's son, Milton Ndlovu, whose evidence had to be recorded in the Victim Friendly Court given his vulnerable age.

The rest of the evidence was admitted into the court proceedings as recorded in the State summary and in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused was the sole witness for the defence and his attempt to call his cousin as a witness was shot down by the court after assessing that his evidence was not going to assist in any way in clarifying the issues around the alleged murder of the deceased.

Brighton Dube took the court through what exactly happened from the time the accused arrived at the deceased's place to the time the deceased was savagely attacked by the accused leading to her demise.

It was the clear evidence of Brighton that when the accused arrived at the deceased's homestead he asked the whereabouts of Jethro Ndlovu and was advised that he was not at home. He further stated that when the accused turned to the deceased to discuss the issue concerning the deceased's husband's alleged adulterous relationship with his wife the deceased then suggested that they involve a neighbor, Gipton Ndlovu, to resolve the issue. It was his evidence that the deceased then suggested to him and Milton Ndlovu that they put on their shoes to accompany her to Gipton Ndlovu's place.

It was the evidence of Brighton Dube that he then heard the accused saying to the deceased the following,

“Today I want to leave Jethro Ndlovu with no wife as I also no longer have a wife.” 

The witness said the deceased pleaded with the accused to have Gipton Ndlovu involved but her pleas fell on deaf ears.

The next thing, this witness saw was the deceased running back into the hut and trying to secure the door by standing behind it. The accused succeeded in overpowering the deceased by pushing the door open and immediately attacked the deceased with a hoe.

According to this witness, the first blow on the deceased landed on the right side of the deceased's head just below the ear and that blow literally rendered the deceased motionless. Even when she was down, and defenceless, the accused continued to attack her concentrating the blows that followed on the deceased's head. That this was so is confirmed by the postmortem report which noted multiple skull fractures.

That there were these kinds of assaults was confirmed by both the accused himself, and, to a lesser extent, by Milton Ndlovu, who, because of his tender age at the material time, was unable to give graphic details of the assault itself….,.

The credibility of the State case found support from an unlikely source - the accused himself.

The accused's own version supported the deceased's assault as given by Brighton Dube but sought to differ on the number of blows he delivered. To us, the disparity in the number of blows on the deceased is not the issue but the impact of those blows on the deceased. Whatever number of blows were delivered, the blows had the effect of causing the immediate death of the deceased.

The accused's explanation was that he acted in the manner he did because he had been provoked by the utterances of the deceased when she allegedly told him to “keep your dog leashed.”

Our view is that if indeed these words had been uttered by the deceased, resulting in the accused reacting to these words by assaulting the deceased, these utterances would have been made an integral part of the exhibit 1, the accused's warned and cautioned statement which was recorded from him barely four days after the deceased's assault. Instead, these very serious utterances are conspicuously missing from exhibit 1.

In addition, the accused's flawed evidence in court, that he, at one time, had found his wife and Jethro Ndlovu having sexual intercourse, and, literally, did nothing to his wife, did not project him in good light. We know as a court that the accused was incensed by exhibit 4 to the extent that he savagely assaulted his wife leading to her unceremonious departure from the parties' matrimonial home. It clearly defeats common sense and logic that if indeed the accused had caught his wife and Jethro red-handed having sexual intercourse he would have done nothing to his wife, let alone not bring that issue to either the deceased or the Village Head.

To compound his situation, this alleged sexual intercourse between his wife and Jethro Ndlovu was never made part of his Defence Outline, warned and cautioned statement, let alone put to his wife in cross-examination.

In court, the accused openly admitted that he had lied to the recording detail about having seen Jethro Ndlovu handing a letter to his wife.

By giving contradictory evidence in court concerning the number of letters he recovered concerning the adulterous relationship between Jethro and his wife, the accused soiled his own credibility. The accused's situation gets worse when one accepts that when his wife, Siboniso Dube, appeared in court to give evidence as a State witness, the accused, through his counsel, did not even make an attempt through cross-examination to rebut her specific averment that her alleged confession to adultery was as a result of duress brought about by her savage assault by the accused coupled with a threat to end her life by axing.

One further finds it extremely unbelievable that the accused would have forgotten to instruct his counsel to ask his wife about where exhibit four was recovered from, let alone her being caught red-handed in a sexual act with Jethro or even to question her as regards one of his three children whose paternity he was now putting in issue in court.

It will be recalled that even though the accused and the deceased had briefly got out of the kitchen hut before the assault, the deceased was still conversing with Brighton Dube and Milton Ndlovu who were inside. It is evident that the reason why the deceased sought to involve her neighbour was because she was fearful of the accused. It is highly improbable, in our view, that given her state of fear at that time she would have gathered courage to utter the words belatedly attributed to her by the accused.

In any event, if such words had been uttered, our firm view is that Brighton Dube would have heard such words. It makes sense to us that the attack on the deceased was unprovoked and informed by the accused's expressed desire to ensure that Jethro Ndlovu would not have a wife, since, according to the accused, Jethro Ndlovu had destroyed his marriage by having an adulterous relationship with her. This then motivated the accused to savagely assault the deceased leading to her inevitable demise.

I wish to briefly deal with the defence of provocation which the accused has sought to feebly raise in this case.

Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which the court brought to the attention of both counsel during court addresses, provides that in a murder charge where provocation is successfully pleaded it provides a partial defence. The section reads, in part, as follows:

“239. When provocation a partial defence to murder

(1)…,.

(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that –

(a) He or she did have the intention or realization referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;

the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

We have already dismissed the factual averments put forward by the accused person as the basis for his alleged provocation in preference to his utterances as put forward by Brighton Dube that he made it clear before the assault that his avowed aim on that day was to end the deceased's life in order to fix Jethro Ndlovu.

Now, if a man is heard making threats to end someone' life, proceeds to conduct himself in a manner that indeed fulfils that objective, the verdict can only be one - it has to be murder with actual intent.

We have considered the specific details about the murder weapon, as provided by the State counsel, the delicate part of the deceased which was repeatedly attacked by the accused, coupled with the accused's utterances before the assault.

We are more than satisfied that the accused made it his primary objective to end the deceased's life and proceeded to conduct himself in a manner that ensured that his objective was realised.

Consequently, the accused is found to have murdered the deceased with actual intent.

Thembinkosi Dube (the accused) pleaded not guilty to the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State's allegations are that on the 23^rd of April 2015 the accused murdered Rabson Tshuma (the deceased).

The facts in this case, which are not in dispute, can be summarised as follows:

On the fateful day, the accused, the deceased, and other villagers were drinking home-made beer at Alvinah Nyoni's homestead in Janke Village in Lupane. During the course of the drinking, the accused and the deceased were dancing to some music played from the radio. The beer drinking and the merrymaking started in the morning and spilled over to early evening around 18:00 hours.

Without any prior warning, the accused armed himself with a pestle weighing 2,800 grams and used it to strike the deceased twice on the head. The post mortem report (exhibit 2) noted that the deceased suffered multiple skull fractures with multiple bone fragments. The same report concludes that the cause of death was;

(1) Severe cerebral damage;

(2) Multiple skull fractures with multiple bone fractures; and

(3) Severe head trauma due to beating injury.

The two pestle or log blows delivered by the accused were so strong that they claimed the deceased's life on the spot. An attempt to resuscitate his life through rudimentary first aid was not helpful at all.

In denying the allegations of murder, the accused raised self-defence as his dominant defence and went on to feebly attempt to raise the defence of intoxication.

Before making a detailed analysis of the evidence in this case I propose to deal first with the requirements of the two defences raised by the accused person. Our codified law, as provided in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does recognize that in a proper case the defence of self defence can be a complete defence if successfully pleaded. The section is framed as follows:

“253. Requirements for defence of person to be a complete defence

(1) Subject to this part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if –

(a) When he or she did nor omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed, on reasonable grounds, that the unlawful attack had commenced or was imminent; and

(b) His or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she believed, on reasonable grounds, that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack; and

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct –

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

(2) In determining whether or not the requirements specified in subsection (1) have been satisfied in any case, the court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.”

Section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not recognize voluntary intoxication as a defence to crimes like murder which require proof of intention. This is so where despite intoxication, the accused retains the requisite intention to commit the crime charged. Such voluntary intoxication, if established, can only be considered as mitigatory after conviction. Section 222 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not render voluntary intoxication a full defence even in circumstances where such intoxication rendered an accused incapable of forming the requisite intention for the offence charged which factor does not arise in this case because the evidence suggests the accused was in full control of his faculties throughout.

It is with the above legal position in mind that the evidence led by both the State and the defence has to be analysed.

The evidence and its analysis

In its quest to secure the conviction of the accused person, the State relied on the evidence, as recorded in its summary, of the following witness: Mthokozisi Ncube, Alvina Ncube, Absalom Sibanda and Doctor Roberto Trecu as well as the viva voce evidence of Trust Ncube and Phosiwe Nyoni.

The evidence of Trust Ncube and Phosiwe Nyoni was particularly revealing in that it was able to counter, beyond any reasonable doubt, the alleged threats against the accused person by the deceased as put forward by the accused person. Both witnesses, who had been drinking beer with the accused and the deceased during the day, did not witness any altercation or any exchange of words between the deceased and the accused throughout the day. Trust Ncube, who stayed on until the deceased was fatally struck, did not hear of any conflict between the deceased and the accused. Both witnesses testified that if there had been a conflict or misunderstanding, as the accused desperately tried to project, they could not have missed it.

The two State witnesses projected themselves as simple villagers who had no interest in this case other than telling the story as they saw it. To add to their credibility, none of them claimed to have seen the deceased being struck. They both testified to the thudding sound and seeing the deceased floored and helpless and immediately seeing the accused fleeing from the scene. The accused confirmed what the two witnesses testified to. There can be no credibility that goes beyond the one that coloured the evidence of these two witnesses. Their evidence ought to be accepted in its entirety.

The accused's testimony amounted to falling on his own sword.

His evidence confirmed that he was not under attack by the accused. Not only this, but his evidence confirmed that at the time he decided to attack the deceased, he had to walk for close to 20 metres to collect the murder weapon which he, in typical ambush fashion, used to strike the deceased, not once but twice, on the deceased's head - a very delicate part of a human body.

The accused accepted, in his own testimony, that he made sure he attacked the deceased after ensuring that he was not aware of the strike.

The accused's detailed and accurate narration of events did not give room to any suggestion that he was drunk to the extent of not being able to be in full control of his faculties. His evidence showed he clearly knew what he was doing and his every move was intelligently calculated.

The pre-meditation to strike the deceased is there for all to see. The attack on the unsuspecting deceased was well calculated and was carried out with devastating consequences on the deceased.

It is clearly established that at the time the accused delivered the two decisive blows on the deceased, the deceased was drinking beer and was posing no threat to the accused. The double striking was never meant to punish but to end the deceased's life, and, indeed, the objective was realised with distinction.

The accused's running away from the scene is not without significance. It simply means that the accused appreciated that he had completed his mission - to kill the deceased. The crushing of the deceased's head, as per the post-mortem report, confirms this.

In such circumstances, it would be idle thinking for the court not to find that the accused's prime intention was to kill the deceased. Counsel for the accused must be commended for making the concessions he made in court addresses. He correctly read the evidence. It is the proposed verdict that the court differs from him. The accused's counsel spoke in favour of a verdict of murder with constructive intent.

I disagree.

The evidence, as accepted, gives no room to any other verdict rather than an intention to kill. The accused is accordingly found guilty of murder with actual intent.

The accused faces a charge of murder; it being alleged that on 24 October 2014, at Ndiyadzo Business Centre, Chipinge, with actual intent or realizing the real risk or possibility that death may result, stabbed Nomalanga Magodhi with a spear several times on the body thereby inflicting injuries from which she died.

We now move on the deliberate on what the accused persons are guilty of.

Murder committed during the cause of a robbery or theft, as inferred from these facts, followed by the disposal of the body in a disused mine pit, commonly be that of one where the accused persons intended to kill the deceased, rob him, dispose of his body and disappear with his motor vehicle.

No other finding can be made on these facts except that the accused persons killed the deceased after having formulated in their minds the desire to do so.

We accordingly find both accused persons guilty of murder with actual intent.

Sometime in 2003, the accused and two others were indicted for two counts of murder and one count of armed robbery.

In the trial that followed, Joram Frank was acquitted; Pedzisai Zhoya and Jonathan Mutsinze remained. They were convicted of the two counts of murder with actual intent and one count of armed robbery. At that time – 2004, I invited submissions on extenuation from the accused and his erstwhile co-accused whereupon I made a finding that there were no extenuating circumstances surrounding the commission of the two counts of murder since both counts were premeditated and executed in cold blood during the course of planned robberies of business premises in one night.

Before I could pronounce sentence, the record was recalled to the registry to complete certain formalities in respect of the other co-accused who had been acquitted. I was, in the meantime, considering the appropriate sentence.

The matter had to be postponed because on that day the record could not be located in the criminal registry. Subsequently, I was advised that even my long hand notes could not be located from my clerk's office. I ordered that the recorded proceedings be transcribed. This was done over time, but, again, the transcribed record vanished.

As time passed, even the recording tapes where the proceedings were recorded mechanically were prematurely erased without notice.

There is also an indication that there was a video recording of the accused as he made physical indications. The video recording of the accused making indications was not part of the new record.

Post mortem examination reports of the deceased in each count were produced. There were two ballistics reports in respect of the two scenes of the crime as well as the two firearms used. Blood sample results were also produced in the proceedings.

As I pointed at the onset of this judgment, the accused was convicted on two counts of murder and one count of armed robbery. The reasons for judgment were pronounced in open court at the time. I proceed to give a rehearsed version of those same reasons on the basis of the available record of proceedings.

The State Summary of the case against the accused was that the accused's erstwhile accomplices, Pedzisai Zhoya and Joram Frank, were employed at Craiggieburn Farm, Bindura as farm guards. The farm owner, Richard Paul Dollar, had an array of firearms which he kept inside his house. He left for Harare on 27 March 1998. He stayed there until 30 March 1998. During his absence, the two farm guards had gained entry into his house and stole a .38 revolver.

On 28 March 1998, around 20:00 hours, the accused teamed up with the two farm guards and proceeded to Chipadze Shopping Centre, Bindura. They approached two security guards who were on duty, Lessmore Kange and Takesure Furawu. The accused shot and instantly killed Lessmore Kange. The motive of the shooting was to disarm Takesure Furawu who was armed with a 303 riffle which they wanted to use in the robberies. They proceeded to Chiwaridze Shopping Centre around 20:30 hours. The two arrived at Chiwaridzo Bottle Store. Pedzisai Zhoya remained outside whilst the accused burst into the bottle store and ordered everyone to lie down. He demanded money from the owner of the bottle store, Maslina Ganga. Willis Konje, an off duty police officer who was present, thought that the pistol was a toy. He struck the accused, Jonathan Mutsinze, with a beer bottle on the forehead. The accused responded by shooting Willis Konje from a point blank range. He died a few moments later. The accused proceeded to empty the contents of the till into a bag he brought for the purpose. He also took Maslina Ganga's two wrist watches and a calculator. The cash stolen in the robbery was given as ZW$5,000=.

He left the scene.

In his Defence Outline, the accused, Jonathan Mutsinze, admitted that he was present and took part in the robbery at Chiwaridzo Bottle Store where Willis Konje was shot. He says, however, that it was one Evans who fired the fatal shot that killed Willis Konje. He gave the background to this incident as follows:

On 28 March 1998, he and five others travelled from Marondera to Bindura. Evans and Bonga were in his group. The other group consisted of Simon, Nyamakundu and the father of Eliza. He believes this other group was responsible for the shooting at Chipadze Shopping Centre where Lessmore Kange was shot and killed. He admits that he had proceeded to Chiwaridzo Bottle Store with Evans and Bonga. Evans was armed with a .38 mm calibre pistol. He had a toy pistol. On arrival, he and Evans went inside. His instructions were that he will order patrons to put their hands up and lie down. He gave the order for patrons to lie down. The deceased said that the accused had a toy pistol and struck him on the forehead. He bled profusely. Evans fired. Patrons lay on the floor. He then jumped on the counter and seized the cash box, calculator and the wrist watch. He left and met up with his accomplices and shared the loot. He spent the night at 517 Chiedza Street, Chipadze. He stitched himself up when no one at home was able to. After a week he left for Craiggieburn Farm where he stayed with the accused at Pedzisayi Zhoya's father. He did not disclose his involvement in the robbery to anyone. Neither Pedzisai Zhoya nor Joram Frank was involved in this armed robbery and murder. After 3 weeks he returned to Marondera. In August 1998 he was arrested. He claimed that he was subjected to severe torture which included painful electric shock treatment, beatings under the soles of his feet with either a hose pipe or a plank in order for him to confess….,.

According to Jonathan Mutsinze, his accomplice directed him on what to do; which is to close the door; to raise his hands showing live bullets as he shouted the order for everyone to put up their hands and lie down and to demand money. He then proceeded to do exactly as he was told. He had a toy gun and Pedzisayi Zhoya had a real one.

The first witness to give evidence was Takesure Furawu who survived the botched armed robbery at Chipadze Shopping Centre. His fellow guard, Lessmore Kange, was less fortunate. He told the court that he was in the company of Lessmore Kange when they were approached by a young man who handed a live bullet to Lessmore Kange. This man took steps backwards, showed then another live round. He then fired at the deceased. This man wore a blue shirt and a navy blue or black pair of trousers. The latter fired two shots in the air. The deceased took a few steps in an attempt to run away before he fell down and died. He was unable to identify their assailant. He did not see any other person at that time. The deceased was not armed but he had a .303 which had no bullets as he had not received any training in the use of firearms. The purpose of carrying it was to intimidate would-be assailants he said.

Under cross-examination, he said although people were still milling around, he could not say whether their assailants had company. The man did not say anything before he fired. He had been arrested by police on the day as the public believed he had shot his colleague. He had been severely assaulted in a fit of public anger over the killing of his friend. He had thrown away his rifle as the crowd pursued him. Police rescued him from the assault and detained him. He was released when the police identified the correct suspects.

Zuze Zuze is the witness who rescued the first witness from the crowd. He took his rifle and gave it to the first officer at the scene, one Constable Takundwa, who was off duty.

Paul Richard Dollar identified the .38 special revolver which was produced as exhibit 12. He had not missed it till police called him to advise him of its role in the double murders. His guards, who were Pedzisayi Zhoya and Joram Frank, had access to keys to the house when he was away.

The fifth witness, Albert Fato, gave direct eye witness evidence on how the murder and armed robbery at Chiwaridzo occurred.

Around 8pm, the accused, Jonathan Mutsinze, entered into the bottle store when doors had been closed for ending the business of the day. He closed them behind him. He then ordered everyone to take care and hands up as he wielded a gun. Someone, a patron, then said the accused had only a toy pistol. The accused turned back to see this man who had retorted a challenge to the arms he was bearing. That same patron then struck the accused on the forehead with a bottle which slipped and hit the walls. The accused, Jonathan Mutsinze, then fired at point blank range towards this patron. People lay on the floor. The accused shouted at them to get out. The accused proceeded behind the counter, emptied the cash box and ran out. The witness called the police to the scene. The deceased was ferried by other patrons to the hospital. The accused had been inside the shop for close to 10-15 minutes before he produced the gun, shoot the deceased, and rob the complainant. He wore a black pair of trousers. He wore black shoes. Two people, including the deceased, were playing pool at a table and four others were drinking beer. The accused had run away with the cash in his left hand and the gun in the right hand. According to the witness, the accused, Jonathan Mutsinze, held a live bullet in his right hand, waving it as he barked his orders whilst he stood in a firing pose with the gun in the right hand.

Under cross-examination, this witness mentioned that it was the accused who barked orders to people to lie down, take care, get out and so on as he fired his gun and proceeded to grab his loot. This witness' evidence was corroborated by that of Maslina Ganga. According to the witness, the deceased had been drinking with other patrons till closing time. She shut the windows and half of the double doors to the shop. She waited for her patrons to drink up and leave. A certain man entered. He wore a blue shirt. He held a bullet in one hand. His right hand had something carried by a satchel. This man shouted: "take care! Lay down!" She remained on her feet. The deceased held a beer bottle in his right hand and struck the gunman. The gunshot rang out. She ran out the back door exit together with Albert Fato. She asked Fato to keep an eye on this unfolding drama. Police came in response to someone who had called them.

Maslina Ganga says the accused was wearing a blue shirt and a black pair of shoes.

Ernest Mudhindo was nine (9) years old in 1998; when one morning he woke up to find his school satchel missing. He regards Pedzisayi Zhoya as his uncle. He resided at 517 Chiedza Street, Chipadze, Bindura.

Firimon Mbindo Zhoya is employed as a domestic worker. Pedzisayi Zhoya is his son. He described to the court how he would leave his employer's main door keys under the door mat on knocking off his employer could not have returned. The guards, including his son, would see him do this. He recalled that his son brought Jonathan Mutunguze and his wife. He accommodated them for a month and half as it was said they had nowhere to stay. Jonathan had a wound on the forehead. When it healed he went to Marondera.

Givemore Nyamhondera and Andrew Biza gave an account of how the murder and armed robbery at Chiwaridzo took place. They both described the gun-totting man as wearing a blue shirt and a black pair of trousers. They both described how he held a bullet in one hand and the gun in the right shouting to everyone to take care, hands up and lie down. They both told the court that Willis Konje struck the accused on the forehead with a beer bottle after someone remarked that the accused was holding a toy gun. He was then shot. They described how the accused, Jonathan Mutsinze, then proceeded to rob the premises before taking flight into the darkness.

They both say only the accused carried out the murder and armed robbery.

John Chabukwa resided at 517Chiedza Street, Chipadze, Bindura in 1998. On the night in question he told the court that Jonathan Mutsinze, who was visiting him together with his wife, suggested that he goes to see Pedzisayi Zhoya and look for mealie meal at the farm where Pedzisayi was employed. He came back with Pedzisayi Zhoya and he woke up to greet the two before retiring back to bed. They left. He was awakened by his wife who advised him of the return of the two. She advised that Jonathan was injured. He had already been bandaged on the forehead. Jonathan said he had been involved in a fight at the bar. Jonathan left with his wife after two (2) days. He was now wearing a cap.

His wife gave evidence along the same lines.

Jonathan Mutsinze's wife, Farirai Nyambo, also testified. Her evidence was to the following effect. Jonathan Mutsinze left for Matepatepa and came back with Pedzisayi Zhoya on 27 March 1998. The next day they left home around 7pm, after supper, for the beerhall. Upon their return they found her inside the home with the children. They asked her to leave the room with the children. Her husband called her and asked her to bring a dish of water and a mirror. He was inside the toilet. He had a wound on the forehead. She did so. She asked him what had happened. Her husband did not reply. She asked Pedzisayi. He told her not to bother him with useless things. She left the room. He called her to bring a sewing needle and thread. When she did, he asked Pedzisayi to suture his wound. Pedzisayi failed. Mrs Chibukwa came and tried to assist with the suturing but failed as the thread snapped. He then sutured himself. He then took a towel and wrapped it around his head. They tried to leave, the three of them, that night, but failed to find transport. They slept in one room. Pedzisayi produced a gun from under the sofa and threatened her with it if she tried to be clever. Early in the morning, before people were up, they left Bindura for Matepatepa. Pedzisayi would find tablets for Jonathan which he took from home. In April, or there about, they left for Marondera where the accused was arrested by police.

The evidence from these witnesses establish the following facts;

1. The accused, Jonathan Mutstinze, arrived at Chiwaridzo around 8pm on 28 March 1998.

2. He was wearing a blue shirt and a black pair of trousers.

3. There were over 10 patrons still drinking from Chiwaridzo Bottle Store.

4. The accused had a satchel which he placed on the pool table.

5. When other patrons wanted to use the table he picked it up and went out.

6. When he entered the bottle store he waved a bullet in his left arm and wielded a

revolver in the right hand.

7. He took a shooting pose and ordered the patrons to take care, hands up, and lie down.

8. The deceased challenged him saying he was carrying a toy gun and he struck the accused about the forehead when the accused turned around to face him.

9. The beer bottle found its mark on Jonathan Mutsinze's forehead. Jonathan Mutsinze fired at his assailant at point blank range and hit him.

10. Jonathan Mutsinze then ordered the patrons out as he proceeded to pick up the cash box, wrist watches and a calculator.

11. He placed these items in his stripped satchel and ran out into the night.

12. He met up with his accomplices and went home after discarding the cash box.

13. He sutured himself that night. The three then left Bindura the following day.

The accused denies any involvement in the murder of Lessmore Kange a few minutes before the killing of Willis Konje.

We did not believe him for the following reasons:

(a) Witnesses John Chibukwa, his wife, Siti Chibukwa, Jonathan's wife ,Farirai Nyambo, all say that the accused and Pedzisayi Zhoya left 517 Chedza Street after 7pm but before 8pm. They had supper.

(b) The survivor of the Chipadze botched armed robbery described the gunmen as a young man dressed in a blue shirt and a black pair of trousers. Takesure Furawu stated, and we believe him, that he did not realise that this person was carrying a gun but noticed that he showed his victim a bullet before he took steps back and then shot the deceased. The same witness could not tell whether he was in someone else's company since people were sitting around the Centre at the time.

(c) The same modus operandi was replicated a few minutes after that butchery, cruel, robbery.

(d) First, the witness described the gunman as wearing a blue shirt and a pair of black trousers. They also say he waved a bullet to his victim before he shot the deceased. They were unable to say whether the gunman was alone or acting in concert with someone else.

In our view, when the accused states that he was not at Chipadze during the shooting of Lessmore Kange he is not being truthful.

Besides the description given by Takesure Furawu, the court was satisfied that the detailed indications he gave could only have been given by Lessmore Kange with the considered knowledge of the events of the night. Without relying on statements made by the accused there is sufficient evidence on the record from which the only inescapable conclusion is that Jonathan Mutsinze shot and killed Lessmore Kange at point blank range using the .38 special revolver. The evidence adduced indicated that the 303 rifle recovered from Zuze Zuze had not been fired for a long time. So it was not fired that night. The only firearm which had been fired is the .38 special revolver which Jonathan admits was used to plan and execute the armed robbery. As for his explanation that he acted under instructions when he ordered patrons at Chiwaridzo Bottle Store to take care, hands up and lie down, clearly he was fabricating. He did not act under any superior order. We therefore rejected his defence.

The question that remains is whether, when he fired the fatal shots, he intended to kill.

The accused tendered a defence of alibi in respect of the first count. The State led credible evidence to rebut that defence. He did not offer any other defence in respect of the first count. He must be found guilty of murder with actual intent in Count 1.

In Count 2, he shot at an off-duty police officer who had resisted the robbery of the bottle store. There was no submission by the defence that this was in self-defence. The defence argued that the accused carried a toy gun and only did as ordered.

As already demonstrated above, this defence was false. It was a mere fabrication. The overwhelming evidence was that it was Jonathan Mutsinze who masterminded both the botched armed robbery attempt at Chipadze and that at Chiwaridzo. The killing of Willis Konje was reasonably foreseeable when, at planning, it was decided to use a firearm to overcome any resistance to their goal to rob. As such, the accused knew that in the course of their planned armed robbery, which he admitted to planning when in Marondera, they might meet with resistance and that resistance ought to be broken with the use of a firearm. Death of the person resisting was a risk which they had agreed and resolved to deal with. As it turned out, he was struck on the forehead. He shot his assailant at point blank range.

He cannot say he did not intend to kill.

His forehead wound became his identification mark by which he was easily picked up in an identification parade subsequently carried out.

In the result, I found that when Jonathan Mutsinze fired at Willis Konje he intended to kill him. He admitted to commit the robbery but claimed he was under orders planned. No one ordered him. He is guilty of murder of Willis Konje with actual intent as well as armed robbery.