In Learnmore Judah Jongwe v The State SC62-02, the learned CHIEF JUSTICE, CHIDYAUSIKU CJ, stated that where an accused aims several blows at a vulnerable part of the body, the inevitable inference is that the accused must have intended to bring about the death of the deceased by his actions or, at least, foresaw the death of the victim as a virtual certainty.

According to the manner in which the deceased was attacked, the severance of the forearm and the crushing of her head, there was actual intention to kill her.

The established facts are that the accused sought to kill his father. He had the motive, the means and the opportunity to commit the heinous crime. He planned on how he would dispose of the body of the deceased. He managed to conceal the body. Only after a period of 2 years was the body of the deceased recovered from a well. The minor child, Andrics Moyo, placed the accused at the scene of the crime. The defence did not controvert the version placed on record by the minor child.

We are satisfied that the State proved its case beyond a reasonable doubt. The accused intended to kill the deceased. He achieved his purpose. The accused is accordingly found guilty of murder with actual intent….,.

The General Laws Amendment Act (No.3) of 2016 has now set out what constitutes aggravating circumstances. In terms of section 8(3) it is provided that:

“A court may also, in the absence of other circumstances of a mitigating nature or together with other circumstances of an aggravating nature, regard any aggravating circumstances the fact that -

(a) The murder was pre-meditated; or

(b) The murder victim was a police officer or prison officer, a minor, or was pregnant, or was over the age of seventy years or was physically disabled.”…,.

This court recognizes that the manner in which the accused committed this offence fits perfectly within the category of a murder committed in aggravating circumstances.

This matter has been outstanding for a long time. The accused is alleged to have caused the death of his father, Sikhala Zhou, who is his namesake, by striking him with an axe several times on the head and neck on 6 November 2016 in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The 24-year-old accused and his 65-year-old father, the now deceased, stayed at the same homestead in Sikhala Village, Chief Mazhetese, Mwenezi, Masvingo. On 6 November 2016, at about 1900hrs, the accused, the now deceased, and a relative, Trymore Speni (Trymore), arrived at the now deceased's homestead from a beer drink. They were all drunk. A quarrel ensued between the accused and the now deceased, his father. The now deceased was alleging that the accused was not willing to help the now deceased with chores to be done at home and went on to disown the accused as his son. The State alleges this incensed the accused who proceeded to set on fire the now deceased's three huts. It is alleged the accused then took an axe to attack his father, the now deceased, but Trymore Speni (Trymore) intervened in order to restrain the accused. The State alleges the accused struck Trymore with the axe. Thereafter, it is said the accused advanced towards his father, the now deceased, and struck him with an axe several times killing him instantly.

The defence raised by the accused throws any possible explanation at the court as it were. It is like a dog's breakfast. The accused alleges provocation, voluntary intoxication, self-defence and defence of a third party. To cap it all, the accused denies that he fatally attacked his father, the now deceased. Instead, the accused tendered a plea of guilty to the lesser charge of culpable homicide. The basis for such a limited plea remained blurred.

In his Defence Outline, the accused said he had drunk copious amounts of the traditional brew together with his father, the now deceased, and a close relative, Trymore Speni, on the day in question. As a result, he said they were all excessively drunk when they all staggered home from a Mr Ndlovu's homestead where there was a beer drink. It is the accused's case that upon arrival home his father, the now deceased, attacked the accused's mother ( the now deceased's wife) who is crippled. The accused said he then intervened to try and rescue his mother but Trymore, in his drunken state, believed the accused was attacking the now deceased. Trymore Speni took an axe in order to attack the accused but the accused disarmed him. The accused said Trymore then picked a stone in order to hit the accused and the accused used the axe to frighten Trymore causing Trymore to flee. The accused said in the midst of this commotion his father, the now deceased, took a machete intending to attack his wife who is the accused's mother. The accused said his mother called out for help and that in response the accused, in a bid to rescue his mother who is the now deceased's wife, struck the now deceased with the blunt part of the axe he had taken from Trymore Speni. The accused said he directed the blow at the now deceased's back. The accused said the now deceased fell onto some sharp part of a plough or harrow and that this metal object pierced the now deceased's head. At that stage, Trymore picked a glowing piece of firewood and threw it at the accused. The accused said he managed to duck and Trymore missed the accused. The piece of glowing firewood fell onto the roof of one of the huts and all three huts caught fire. At that stage he said Trymore fled. The accused said realising the mayhem at the homestead he also fled and only came back the next day after which he was surprisingly arrested. The accused said this explains why he refused to sign the extra curial statement the police forced him to give.

In conclusion, the accused said he only struck his father, the now deceased, once on the back with the blunt and not the sharp part of the axe. He said he did so while in a drunken stupor and acting in a fit of rage. Further, he said he acted in defence of his mother who was about to be struck with a machete by the accused's father, the now deceased.

The axe the accused used was produced as Exhibit 2(a). The certificate of weight Exhibit 2(b) shows its weight as 1,03kg, its length is 73.5cm, being the handle, and the blade is 14cm. All we noted about the axe is that is a lethal weapon which if used can inflict fatal injuries.

Dr Sasa, whose evidence was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], examined the now deceased's body on 8 November 2016 at Neshuro Hospital. He compiled Exhibit 1, the post mortem report. As per the post-mortem report, the following injuries were noted;

(i) 3 deep lacerations on the head.

(ii) One deep laceration at the back.

(iii) 1^st and 2^nd degree burns on the body and torso.

Dr Sasa concluded that the cause of death was the penetrative head wounds or injuries. The cause of the now deceased's death is not being disputed. What the accused seems to dispute is how the now deceased sustained those fatal injuries.

The State led evidence from Trymore Speni, Priviledge Zhou and the investigating officer, Tinos Munengwa. The accused gave evidence and was unable to call his wife to testify as he said he did not know the current whereabouts of his wife since his incarceration on this charge.

The issue we have to resolve is how the now deceased was fatally injured. In doing so, we shall revert to the evidence placed before us. Further, we shall examine whether the numerous defences raised by the accused are available to him.

We now turn to the evidence.

Tinos Munengwa

Tinos Munengwa (Tinos) is the Investigating Officer and we did not find his evidence to be material. He attended the scene of the incident after the now deceased's death. This was now on 7 November 2016. The accused had already been apprehended by members of the public and the alleged murder weapon, the axe…, recovered. He noted the injuries on the now deceased's body especially the three wounds at the back of the head and one at the back. The accused made indications to him. He also saw the three torched huts. Trymore Speni was present and had injuries allegedly inflicted by the accused but Trymore declined to press criminal charges against the accused. Lastly, he noted that the now deceased was lying on a flat rock surface where there were no other items like a plough or harrow.

Tinos Munengwa's evidence was not challenged by the accused.

Both Trymore Speni and Privilege Zhou are eye witnesses to how the now deceased was fatally injured. It is their critical evidence which we shall now deal with.

Trymore Speni (Trymore)

Trymore regarded the now deceased as a cousin on account of their mothers being sisters. He has his own homestead in the same village with the accused and the now deceased.

Trymore said on the day in question, 6 November 2016, he went with the now deceased to do some piece job at a nearby co-operative. Thereafter, they proceeded to a beer drink at Ndlovu's homestead where they found the accused present drinking beer, and, after a short period of time, they decided to leave being three of them. They were carrying some beer which they intended to consume at the homestead of the now deceased and accused.

Trymore said on arrival at that homestead, before even drinking the beer they had brought, the now deceased asked why the accused had not finished thatching one of the now deceased's huts. The accused, in a rude manner, retorted that he was not the now deceased's employee. A quarrel then ensued between the accused and the now deceased.

According to Trymore, the now deceased was saying the accused should obey him if he was indeed his son lest he would disown the accused. The accused, in turn, was incensed by this and demanded to be shown his real father. He said the two started to shout at each other and Trymore decided to leave but the now deceased's wife, who is the accused's mother, pleaded with him to remain lest the accused and the now deceased would be violent as the accused held his father, the now deceased, by the collar. Trymore said he then restrained the accused by standing between the accused and the now deceased. The accused was threatening to set on fire the three (3) huts at the homestead belonging to the now deceased and Trymore pleaded with the accused not to act in that manner as the accused had picked a burning piece of firewood.

It is Trymore's evidence that the accused then took an axe…, and Trymore tried to disarm him. As the two struggled over that axe the accused struck Trymore with the axe on the upper lip and above the right eye. Trymore has visible healed scars on his upper limp and above the right eye.

After having been struck with the axe, Trymore said he fell down unconscious. When he regained consciousness he realized that the three huts were on fire.

Trymore said as he struggled to leave this homestead he saw the accused who was still armed with the axe. The accused threatened to further harm him, but, for some reason, the accused left Trymore and went behind one of the huts. At that stage, Trymore realized the accused was chasing after the now deceased wielding the axe. He said the now deceased fell down. By then, Trymore was still bleeding profusely and losing strength. He fell down. As he lay down Trymore said he heard a thudding sound which he described as “kaa, kaa, kaa” like someone cutting a dry tree. This was accompanied by the accused's utterances that he was finishing off the now deceased and would burn the body.

Trymore testified that a fellow villager, one Jealous Bako, then arrived inquiring what was happening. The accused lied that the now deceased and Trymore had attacked the accused. Trymore realized the now deceased had died.

Under cross examination, Trymore Speni said the accused was moderately drunk, just like himself and the now deceased. He said the accused was able to carry beer in a container without a lid and did not spill the beer. He disagreed, therefore, that the accused was excessively drunk. Trymore refuted that any person tried to attack the accused or the accused's mother but that the accused was the aggressor. He dismissed as false the accused's version of events, as per the accused's Defence Outline, insisting that the now deceased never took a machete. Instead, he said, it is the accused who took an axe and injured Trymore. Trymore said while he did not see the accused striking the now deceased with an axe he nonetheless saw the accused chasing the now deceased wielding an axe. He refuted that the accused's mother was under any attack. Trymore denied torching the huts and only gained consciousness when the huts were burning. Lastly, he said the accused was known to be a person of violent disposition.

In our assessment Trymore gave his evidence well. Although he had taken alcohol he had a fair recollection of events of that day. In our view, he did not seek to exaggerate his evidence. Instead, he limited himself to what he saw.

As an example he was truthful that he did not see how the accused allegedly struck the now deceased with the axe or how the accused torched the huts. Indeed, he was fair as he blamed both the now deceased and the accused for starting the quarrel or misunderstanding. Clearly, he has no motive to falsely incriminate the accused. In fact, to show his sincerity he declined to press charges against the accused despite being harmed with the axe. Trymore Speni answered all questions put to him in cross examination in an impressive manner. We therefore find no cause not to accept his evidence.

Privilege Zhou (Priviledge)

Privilege is now 16 years old and is born to the now deceased's daughter. The accused is her maternal uncle. At the material time she was staying with the now deceased and the accused at the same homestead. She testified that on 6 November 2016 she was at home with the accused's wife, the now deceased's wife (the accused's mother) who is crippled, a neighbour, Joyce, and some other young children.

Privilege said the accused, the now deceased and Trymore Speni arrived in the evening from a beer drink and the accused and the now deceased were shouting at each other. She did not know what had sparked the misunderstanding. All she heard was the now deceased saying the accused was not his son and the accused threatening to torch the huts. Her evidence is that the accused took a piece of glowing firewood and some grass which he lit and threw on the roof of one of the huts. Within a short period, all the three (3) huts caught fire.

Privilege then explained how the now deceased was fatally injured. She said the accused took an axe trying to attack the now deceased which forced Trymore to try and disarm the accused. She said the accused struck Trymore with the axe above the right eye and fled leaving Trymore injured.

After about 10 minutes she said the accused returned as Trymore was struggling to get up in order to flee. She said the accused threatened to further harm Trymore but turned to the now deceased still wielding the axe. The deceased tried to flee but the accused chased after him. She graphically described how the accused fatally attacked the now deceased as follows;

(i) She said the accused first struck the now deceased with the axe on the back as the now deceased tried to run around one of the huts.

(ii) She said the accused pursued the now deceased, tripped him by the doorway causing the now deceased to fall.

(iii) She said as the now deceased was on the ground the accused delivered two or three blows with the axe which were all directed to the back of the now deceased's head. The deceased died instantly.

Privilege Zhou said after this frightening act they all fled and alerted a member of the neighbourhood watch committee about the now deceased's death who is called Bako. Since the huts were still burning they had to lift the accused's mother, who is crippled, from the burning huts. The accused was only apprehended the next day.

Counsel for the accused could not meaningfullly cross-examine Privilege.

We appreciate his predicament. Privilege was a brilliant witness. Her evidence was free flowing and damning to the accused's case. In fact, she virtually sounded a death knell to the accused's defence as she did not only corroborate Trymore Speni but exposed the accused's defence as a pack of lies.

Privilege was clear that it is the accused who fatally attacked the now deceased not that some plough or harrow injured the now deceased. She was clear that the accused also injured Trymore with the axe. She exonerated Trymore from torching the huts or attacking the accused in any manner. We find no reason not to accept this young girl's evidence. She is an eye witness to all what happened.

It is our view that no useful purpose would be served by dealing with the various defences raised by the accused. This matter can be resolved solely on factual rather than legal issues. The fact of the matter is that the accused's defence is anchored on falsehoods. As a fact, the accused was not meaningfully provoked by his father, the now deceased, who merely asked him why he had not finished thatching the hut. From the evidence presented before us while the accused had consumed alcohol he sought to exaggerate his degree of intoxication. Judging by his own detailed and coherent evidence the accused fully appreciated what he was doing that night. It is abundantly clear that the accused did not act in self-defence. He was never under attack from anyone. In fact, the accused was the aggressor throughout. The accused's mother was never under attack hence it is a lie that the accused acted in her defence. As a fact, it is the accused who inflicted the fatal injuries on the now deceased which are clearly spelt out in Exhibit 1, the post-mortem report. The accused's intention is as clear as a blue sky. He intended to cause the now deceased's death and indeed he achieved that.

The accused armed himself with a lethal weapon - the axe. He aimed blows at the now deceased's head with the axe. Consequently, he cannot escape liability for causing the now deceased's death with actual intent.

VERDICT: Guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] - Murder with actual intent.

We find that the accused actually did intend to kill the deceased.

They desired his death. They willed the result that ensued. Until he stopped moving, the accused continued to pummel him. Therefore, both accused are hereby found guilty of the murder of the deceased, Zvinowanda Zvinowanda, with actual intent.

We find that the accused actually did intend to kill the deceased. Therefore, the accused is hereby found guilty of murder with actual intent.

The accused, aged 28 years, is facing a charge of murder.

The allegation being that on 24 November 2014, and at Chabukhowa Village, Chief Pashu, Binga, the accused unlawfully and intentionally killed Peter Mudimba by striking him on the back of the head and above the left ear using an axe. The accused pleaded not guilty to the charge of murder and tendered a limited plea to the lessor charge of culpable homicide.

The State rejected the limited plea and the matter proceeded to trial.

The State case was fairly straight forward and most of the issues were not disputed and are common cause. The State opened its case by tendering a State Outline (Exhibit 1). It shall not be necessary to repeat the entire contents of the summary of the State case which now forms part of the record. The Defence Outline was read into the record and marked Exhibit 2. The accused's Defence Outline is set in the following terms:

“At the trial of this matter, the accused will plead not guilty to contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], murder, leveled against him but guilty to culpable homicide and will state the following in his defence:

1. That his wife had spent seven days away from home and that she had left a 2 year old baby behind and he had no idea as to where his wife was.

2. That, sometime in September 2014, he had caught his wife red-handed having sexual intercourse with one Enock Muleya in their matrimonial hut and matter was yet to be resolved.

3. That he suspected his wife was unfaithfully and having an affair with the now deceased.

4. That he was having a domestic dispute with his wife for a period of about five months prior to the fateful day.

5. That he was overcome by anger and emotions due to cumulative domestic disputes with his wife and suspected that his wife was having an affair with the now deceased.

6. That he did not intend to kill the deceased but acted in a fit of rage.

Wherefore, accused will pray for his acquittal on the charge of murder but be found guilty of culpable homicide.”

The next documentary evidence is the accused's warned and cautioned statement (Exhibit 3). It is necessary to set out the contents of this statement which was recorded at Hwange on 8 December 2014. The statement is in the following terms;

“I admit to the charge of killing Peter Mudimba. It was on 24 November 2014 at my own homestead, Chabukhowa Village, Chief Pashu inside my bedroom hut. I struck him first on the back of the head and he fell onto the ground and I got out of the hut. I returned back in the hut and found him having difficulties in breathing and struck him again with an axe above the left ear and he died. The reason of killing the deceased is that Samukeliswe Mpofu, my wife, advised me that she had consensual sexual intercourse with her once with him on the way. I then hid the axe at the side of the homestead next to “Mqokolo” tree after wiping off the blood.”

The accused's warned and cautioned statement was confirmed by a magistrate. The State then tendered an affidavit by Edson Chikunguru, a Constable in the Zimbabwe Republic Police confirming that he had collected the body of the deceased from the murder scene to United Bulawayo Hospitals (Exhibit 4). A post mortem report (Exhibit 5), prepared by Dr Sanganai Pesanai, details the cause of death as:

(a) Brain damage.

(b) Multiple skull fractures.

(c) Chop wounds.

(d) Homicide.

On further marks of violence, the post-mortem report reflects that there was a chop wound on the left temporal region oozing brain matter (8x2cm) and a chop wound on the right occipital region (8x1cm).

The last exhibit was the murder weapon, the axe (Exhibit 6).

The State led oral evidence from its first witness, Siyamukelisiwe Mpofu. She testified that the accused was her customary law husband, although no lobola had been paid to her parents. They started living together around March 2014. She is only aged 20 years. She met the accused at Nkayi. After they fell in love they moved to Binga where they stayed with the accused's step-father for a period of four months before they left to establish their own rural home in the same area. The witness told the court that their relationship ran into problems as soon as they left the accused's step-father's home to live on their own. She testified that their first problem was that the accused was married to another woman. The witness referred to her as the senior wife. The senior wife, Sithengisiwe Sibanda, left the accused as soon as the witness set up their home. The relationship suffered further problems as the accused constantly accused the witness of admiring other men. The situation was so bad that the accused would follow the witness wherever she went. The witness said the accused forced her to admit that she was attracted to other men. The parties' relationship was not peaceful to the extent that the witness would constantly leave the matrimonial home to seek refuge with the accused's relatives. It was the witness' evidence that she was subjected to beatings regularly. She was accused of having an affair with a number of men in the area. She was accused of having boyfriends at Kamativi Police. She was accused of having been in a relationship with one Enock Muleya. She was accused of having a fling with several other men - including her father-in-law, Jacob Mudenda.

A few days before the fateful day the witness was assaulted by the accused. At first she decided to flee to her father in law's homestead, but, on second thoughts, she decided to go and report the matter at Kamativi. She spent three days at the police station before a neighbourhood watch committee member (the deceased) was assigned to attend to the matter. The deceased was instructed to go to the Chief's place where he would obtain a letter summoning the accused to attend at the Chief's court. The witness left Kamativi in the company of the deceased and spent another night at the Chief's place before proceeding to her homestead. On the way, she met with the accused person who indicated that he was on his way to to report her absence from home at the Chief's court. The deceased informed the accused that he was actually on assignment to attend to their domestic dispute and that he intended to have a discussion with his father-in-law before they returned to the Chief's court. The accused, the deceased and the witness proceeded to see the accused's father in law. Upon arrival at Jacob Mudenda's homestead the deceased explained the nature and purpose of his visit. He indicated that they would go and collect the witness's clothes from her homestead and would pass through updating Jacob Mudenda about the matter.

From Jacob Mudenda's homestead, the accused, the deceased and the witness proceeded to the accused's homestead to collect clothing items for the witness. Once at the homestead, the witness observed that there was no property at the homestead. The accused informed the witness that he had hidden all the household goods and clothes in the bush because he was afraid she would bring the police and take away all the goods and clothing. The accused advised the witness to carry the property half way to the homestead and he (the accused) would carry it the rest of the way. The witness observed that the accused was not placing the property inside the house but placing it outside. When all the property had been collected from the bush the accused confronted the witness holding a kitchen knife. He demanded to have sexual intercourse with her and she complied because of threats. The accused indicated that he suspected that she had already had intercourse with the deceased on the way to his homestead. The accused then told the witness that the deceased had already gone back and that he had given him their generator. The witness confirmed that once they got back to the homestead that the deceased was nowhere in sight.

The last time the witness saw the deceased alive was when he was seated outside their homestead under a tree.

The witness realized that the bedroom hut was padlocked. Then the accused instructed the witness that they should leave the place immediately. They proceeded to Witness Muleya's homestead where they took a bath, ate some food and then boarded a commuter omnibus. The accused hinted that they might go to Plumtree but he later said they would go to Zambia instead. On 25 November 2014 the witness and the accused arrived at Mlibizi Fishing Camp. Whilst there they were given shelter by a certain man who lived with his two wives. After a few days at Mlibizi the accused confessed to the witness that he had killed the deceased. The accused told the witness that he blamed her for the death of the deceased because he suspected that she was having sexual relations with the deceased. The witness then alerted villagers about the killing, leading to the arrest of the accused….,.

The next witness for the State was Jacob Mudenda. The accused is his step-son. He adopted him as his son at the tender age of one year six months old. He knew the first witness as his daughter in law. He confirmed, however, that no matrimonial formalities were conducted as no lobola was paid to the first witness's family. The witness described the relationship between the accused and the first witness as being a stormy one. He confirmed that the accused was extremely jealousy and constantly accused his wife of having affairs with other men. He testified that the accused was so jealous to the extent that wherever his wife went he followed her. He went with her to fetch water. He went with her to the fields and he did not permit her to converse with other men. She was virtually in captivity. His daughter-in-law was regularly assaulted and she would seek refuge at his homestead.

On 24 November 2014, around 3pm, he found the accused, the deceased and Siyamukelisiwe Mpofu at his homestead. The deceased had a message for the witness from Chief Pashu. The deceased indicated that he was going with the accused and his wife to their homestead to collect the first witness's clothes. The deceased promised to pass through on this way back and update him on the matter. The witness waited for the return of the deceased but he did not return. At around 5pm the witness decided to go and find out whether there had been a problem. He said that he suspected, that, because of his past violent history, the accused could have assaulted or harmed the first witness. Jacob Mudenda told the court when he arrived at the accused's homestead he realized that the place was deserted. He formed the opinion that noone had spent any time at the homestead. There was no sign of a fire having been lit and the bedroom hut was locked. The witness became suspicious and anxious. He peeped through the window of the bedroom hut. He was horrified to see the body of the deceased inside the hut lying on the floor. There was blood on the side of the deceased's head. There were blood stains on a piece of cloth covering part of the deceased's body. Jacob Mudenda alerted villagers about the death of the deceased before proceeding to make a report at the Chief's place. A report was later made to the police….,.

The State made an application to have the evidence of the following witnesses, as contained in the summary of the State Outline, to be admitted into the record in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], namely:

(a) Marvellous Dube.

(b) Kudzai Matombo.

(c) Dr S. Pesanai.

The defence acceded to the request by the State and accordingly the evidence of the aforesaid witnesses was introduced into the record by way of formal admissions.

The State closed its case and the defence led evidence from the accused who gave evidence in support of his defence case.

The accused gave a very graphic description of how he attacked and killed the deceased. He gave a clear summary of what happened moments before the deceased lost his life. In summary, he stated that he had a struggle with the deceased inside the bedroom hut; the deceased had kicked him just below the rib cage; he had retaliated in self-defence and picked up an axe which was lying around; as the deceased turned his back against him he had struck the deceased at the back of the head with the axe; he went out of the hut briefly and when he came back he noticed that the deceased was still alive because he was uttering some inaudible words; the accused says that he observed that the deceased, who lay prone on the floor of the bedroom hut, was attempting to pick a metal pipe; the accused says he delivered the second blow below the deceased's right ear using the axe; at that stage, the accused says he concluded that the deceased was dead. He proceeded to lock the door to the bedroom hut before fleeing the homestead.

It is apparent that the manner of killing is not in dispute. What is in dispute is why the accused committed the murder.

The accused's testimony is to the effect that prior to 24 November 2014, his marriage with the Siyamukelisiwe Mpofu was a rocky one. The accused cited, as the main problem, his wife's tendency to be attracted to other men. The accused told the court that his wife confessed to him that she had some kind of demonic attraction to other men - including his own step-father. The accused said that his wife (first witness) would frequently disappear from the matrimonial home for several days. He suspected she had affairs with married police officers based at Kamativi. He said he had caught her having sexual intercourse with Enock Muleya and that the matter had not been resolved. The accused mentioned that his wife had told him that the deceased was the only man who could satisfy her sexually. The accused spoke at great length about his wife's alleged attraction to several and many men.

The accused's defence was mounted on several fronts. These are as follows:

The accused stated, in his Defence Outline, that he was overcome by anger and emotions due to cumulative disputes with his wife and suspected that his wife was having an affair with the deceased. In his warned and cautioned statement.., the accused states that the reason he killed the deceased was that his wife had advised him that she had consensual sexual intercourse with the deceased.

The accused raised a new defence, of self defence, in his evidence-in-chief. For the very first time the accused suggested that he had struck the deceased with an axe because he was under imminent attack from the deceased. He stated, for the very first time, that he had been kicked by the deceased. The picture that emerges is that the accused was inventing his defence at every stage of the case.

It is settled law that the State must prove its case beyond reasonable doubt. Where the accused person raises a defence, the court should not reject such defence unless the version cannot reasonably be possibly true. I shall examine each of the defences proffered by the accused.

Self defence

For this defence to succeed, the accused must show that he was under imminent attack. He must establish that the action he took to defend himself was reasonable.

The accused totally failed to show that he was under any attack. The defence was clearly an afterthought and a recent creation. We reject this defence as false. Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

“(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against 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 or omitted to do the thing, he or she believed, on reasonable grounds, that the unlawful attack had commenced or was imminent; and

(b) 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…,.”

Putative Private Defence

Under South African Criminal Law, putative self-defence is available to an accused who believes that he has a right to defend himself against an unlawful attack; the author, J BURCHELL, in his book, Principles of Criminal Law (4^th Edition)…, states the position as follows:

“The objective test of private defence has the consequences that the court may decide that although the defender believed that he was entitled to engage in a defensive attack, objectively viewed, the situation was not one in which he was justified in resorting to a defence or, if he was, the steps taken in defence exceeded what was necessary to repel the attack.”

Provocation

The accused should show that he acted as a direct result of the provocation. It is surprising to note that the accused was not provoked by Enock Muleya whom he alleged he found being sexually intimate with his wife - on his bed, in his house; and yet he wants the court to believe that he was provoked by the deceased because had seen him holding hands with his wife several hours before the murder. The accused's conduct defies logic and the defence of provocation has no foundation. The requirements of this defence are canvassed under section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The post-mortem report indicates that the deceased had chop wounds on the back of the head and a chop wound on the left temporal region with brain matter oozing. The nature and severity of the injuries prove beyond any doubt that the accused's sole objective was to kill the deceased.

The accused even confessed that when he realized that the deceased was still breathing he struck him again. His fixed objective, at that stage, was to complete his mission and extinguish the life of the deceased. He proceeded to padlock the door to the bedroom hut to ensure that in the unlikely event that the deceased regained conscious, he would find himself trapped inside the locked house and naturally die.

We are satisfied, that, on the evidence led, particularly the graphic explanation by the accused of how he executed the attack on the deceased, his intention was to cause the death of the deceased. The State proved its case beyond reasonable doubt.

The accused is accordingly found guilty of murder with actual intent.

On the basis of such finding we come to the unanimous conclusion that the group had the actual intention to kill the deceased. That intention must be ascribed to whoever associated himself with the attack on the deceased. It therefore follows that whoever associated with the murderous group had the necessary intention to kill the deceased, and, therefore, guilty of murder with actual intent.

The tragic events in this matter unfolded on the new year's day, being 1 January 2017, a day normally associated with merry making, at Bhuka Business Centre a few kilometres outside Masvingo town along the Masvingo to Beit Bridge highway.

The accused is alleged to have caused the death of one Taruvinga Tazira by stabbing him which an okapi knife on the head in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to murder.

On this fateful day, the now deceased, Taruvinga Tazira, aged 23 years, was at Bhuka Business Centre with his friends Wadzanai Sakadzo, Alfred Muteti and Brian Dube, all residents of Action B Resettlement, Mushandike, Masvingo. The then 22-year-old accused, a resident of Village 9B Mushandike Resettlement, Masvingo was also at the said business centre with his young brother Innocent Mapurisa. They were all enjoying the new year celebrations with other merry-makers. Matters of the heart also took centre stage as a 21-year-old, Shelter Mukaro, a resident of the same village with the now deceased fell in love, on that day, with the accused whom she had met for the first time on that day at Bhuka Business Centre. Shelter Mukaro was in the company of her friend, a fellow villager, Roselyn Philemon, younger to her who apparently found comfort in the company of the accused's young brother, Innocent Mapurisa.

Later in the day a misunderstanding arose between the now deceased's friend, Wadzanai Sakadzo, and the accused's young brother, Innocent Mapurisa, almost resulting in a fist fight. The State alleges that the now deceased, as a good samaritan, tried to forestall this fight much to the chagrin of the accused who apparently wanted to watch a free boxing match between his young brother and Wadzanai Sakadzo. It is alleged the accused told the now deceased not to stop the fight but the now deceased was unperturbed.

It is the State case that this was the genesis of the altercation between the now deceased and the accused. The accused is alleged to have jumped on to the now deceased causing the now deceased to fall down. The accused is said to have sat on the now deceased's chest and pulled out a knife. One of the now deceased's friends sensing danger, Alfred Muteti, is said to have tried to avert the danger by pulling the accused away from behind but was allegedly stopped by the accused's young brother, Innocent Mapurisa, who, in turn, held Alfred Muteti. The accused is said to have proceeded to stab the now deceased in the left side of the head with a knife which the accused failed to remove. The accused is said to have fled from the scene. The now deceased is alleged to have tried to flee also but collapsed after a distance. He was ferried to Masvingo General Hospital from where he was transferred to Parirenyatwa Hospital in Harare where he passed on three days later, on 4 January 2017, allegedly as a result of the head trauma arising from the stab wound.

In denying this charge, the accused raised the defence of self-defence. As per his Defence Outline, the accused proffered the following version of events;

The accused said he was walking with his girlfriend, Shelter Mukaro, at Bhuka Business Centre on that fateful day on 1 January 2017, at about 20:00hrs, when some two young men not known to the accused one Brian Dube and Wadzanai Sakadzo threatened to beat up the accused for indecently behaving with Shelter Mukaro whom they allege was their sister. The accused said these two young men pulled away Shelter Mukaro saying they were taking her home. Thereafter, the accused said he saw a group of young men, including the now deceased and Alfred Muteti, who threatened to assault the accused. The accused said he was cornered by the now deceased and his colleagues who proceeded to assault him with fists. The accused said he fell down and was further pummelled on the face, head and neck as he lay helplessly on the ground. The accused said as he lay down he fortuitously picked a knife which should have been dropped by the deceased or one of the now deceased's friends. In a bid to escape, the accused said he threw the knife in the direction of the now deceased. The now deceased then cried out that he had been stabbed which caused the now deceased's colleagues to retreat. The accused said this gave him the chance to flee from the scene. It is the accused's contention that he reasonably acted within the bounds of self defence as he genuinely believed his life was in danger. On that basis, therefore, the accused prays for his acquittal on the proffered charge of murder.

During the trial, a total of three (3) exhibits were produced. These are;

Exhibit 1 a post mortem report authored by Dr Roberto who examined the remains of the now deceased and indicated the cause of death as severe celebral oedema and damage, subdural haematoma and subdural haemorrhage arising from the head trauma caused by the stabbing….,.

Exhibit 2 is the knife which the accused stabbed the now deceased with. We noted that it is a rather unique knife, probably a hunting knife. Its blade has a cutting edge on one side and rugged or grooved edge on the other. The handle is 14cm long, the blade is 11cm long and it weighs 159g. The thick part of the blade is 200mm. Indeed, it is a lethal weapon. This knife can be folded and fits well in a pocket.

Lastly, Exhibit 3 is a report by Dr Maxmillian N. Dzowa who attended to the now deceased at Parirenyatwa Hospital in Harare, after his admission on 2 January 2017. The following is outlined in that report;

(i) The now deceased had the knife lodged in his left side of the head.

(ii) He was sedated for a CT scan of the head to be taken and in preparation for the theatre.

(iii) The now deceased's condition is described as being bad as he was deeply torpid (i.e. death like or comatose).

(iv) He was intubated and taken for CT scan which revealed that he had sustained “a perforating injury starting from the left temporal area with a trajectory passing through the suprantorial compartment on the left crossing the mid-line in a diagonal posterior inferior direction through the posterior fossa. The tip of the knife was lodged in the bone of the right side posterior fossa and there was evidence of pressure in posterior fossa and bleeding along the tract of the knife.”

(v) The knife was removed on 2 January 2017 and the now deceased was put in the intensive care unit for the post-operation care but he passed on 4 January 2017.

The testimony of Dr Roberto, a forensic pathologist who compiled the post mortem report, and Forgiveness Nkomo, a police detail who arrested the accused, was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State adduced evidence from Shelter Mukaro, Wadzanai Sakadzo, Alfred Muteti and Dr Maxmillian N. Dzowa. In turn, the defence led evidence from the accused.

In our view, the cause of the now deceased's death is not in issue. The same can be said about the injury he sustained and the medical procedure the now deceased went through before he unfortunately passed on 4 January 2017. To shed more light on this we shall deal with the evidence of Dr Maxmillian N. Dzowa who led a team of doctors who attended to the now deceased and compiled the report, exhibit 3. He also explained certain medical terms contained in a rather illegible post-mortem report compiled by Dr Roberto.

Dr Maxmillian N. Dzowa (Dr Dzowa)

Dr Dzowa, who has a Degree in medicine and surgery and a Masters' qualification as a neuro surgeon with 3 years experience. He specialises in diseases relating to the brain, spinal cord and nerves. He was the lead doctor who attended to the now deceased from 2 January 2017 at Parirenyatwa Hospital until the now deceased's death on 4 January 2017.

In his evidence, Dr Dzowa said the now deceased was admitted with a knife lodged in his head. His blood pressure was inaudible (or very low) and was bleeding profusely from both the nose and the mouth. He explained how the now deceased was treated and the medical procedure carried out.

Dr Dzowa said the now deceased was given medication to raise his blood pressure and had to be sedated in order to insert a tube to enable him to breathe and avoid blood going into his lungs. In order to remove the knife embedded in the now deceased's head a scan was done. This was a necessary procedure as pressure was building in the now deceased's brain.

In relation to the injury sustained by the now deceased, Dr Dzowa said the knife entered through the left side of the head right into the head and was lodged on the opposite (right side) of the head. As a result, there was a lot of bleeding inside the head and also pressure was building inside the head. The now deceased, whose blood pressure was exceedingly low and going down, was in a comatose which meant he was unresponsive and not feeling any pain.

According to Dr Dzowa, the now deceased had to be taken to the theatre in order to remove the knife lodged in his head. He said this was a difficult process as the knife was embedded in the skull. The knife was in the skull bone to the hilt. The whole blade was inside the skull and in order to remove it they had to first remove the bone around the knife blade and its end was also lodged into the bone. After this delicate process of removing the knife the blood was removed around the knife tract or path. He said the other specialists dealt with stopping the bleeding from the ear, nose and mouth. After this procedure the now deceased was taken to the ICU but his blood pressure remained very low and was virtually brain dead. The now deceased passed on two (2) days later on 4 January 2017.

Dr Dzowa was of the view that in order to inflict such an injury severe force was used. This was informed by the fact that the knife perforated the skull and remained embedded in the other side of the skull. It could not be removed without going through the medical procedure he explained. Further, Dr Dzowa pointed out that despite their valiant efforts the now deceased's chance of survival was very minimal because the knife perforated the brain from one side of the head to the other side thus cutting across the vital brain areas responsible for important body functions like breathing and performance of the heart.

Dr Dzowa commented on the accused's version on how the now deceased was injured, which is that the accused had thrown the knife at the now deceased from a distance. The doctor dismissed this as not possible because the knife went through the skull to the other side of the head and was only stopped by the handle. This means that the whole blade, 14cm long, was inside the skull and this could not have been achieved by merely throwing the knife at the now deceased hitting his head at a distance. In fact, Dr Dzowa said the knife entered the skull above the right ear and went through the skull up to below the left ear (which is on the other side).

We also benefitted from Dr Dzowa's explanation of the medical terms contained in the post mortem report which was also not very legible in some portions. The important findings contained in the postmortem report are as follows;

(i) The now deceased's brain was swollen and there was bleeding inside the brain.

(ii) There was lots of water inside the now deceased's lungs which impaired his breathing.

(iii) The heart muscle of the now deceased was swollen.

(iv) There were fluids outside the now deceased's intestines.

(v) There was blood within the now deceased's stomach and there was irritation of the stomach wall.

(vi) The cause of the now deceased's death was the severe swelling and damage on the passage of the knife; bleeding inside the skull - all arising from the head injury caused by the stabbing with the knife.

There is no doubt in our minds that the now deceased sustained very serious and fatal injuries caused by being stabbed with a knife in the head. The knife was lodged deep in the now deceased's head and could not be removed by hand. It is our finding that for the knife to be embedded to such an extent and depth severe force was used. It can therefore be inferred that the intention in inflicting such an injury was clearly to cause death.

Having resolved the cause of the now deceased's death our next task is to resolve how the now deceased sustained this fatal injury. Put differently, which version is true, the one given by the accused or the other alleged by the State. To resolve this, we turn to the evidence of the witnesses who were present at the scene and juxtapose their testimony with that of the accused.

Shelter Mukaro (Shelter)

Although Shelter did not witness how the now deceased was stabbed her evidence is important in shedding light on the events preceding the stabbing of the now deceased.

Shelter Mukaro resides at Stand No.3 Action B Mushandike, Masvingo in the same neighbourhood with the now deceased and his friends. She grew up with the now deceased. She had no love relationship with the now deceased or his friends, but, instead, regarded them as her brothers. She only came to know the accused on 1 January 2017 when they met at Bhuka Business Centre where she had gone to celebrate the new year's day with her friend, Roselyn Philemon, at midday. The accused proposed love to her and she accepted. She was thereafter introduced to the accused's young brother, Innocent Mapurisa, who, in turn, ended up in the company of her friend, Roselyn Philemon.

Shelter said she and Roselyn Philemon are the ones who approached the now deceased and his colleagues requesting that they should go home with them later that day as it would be unsafe for the two girls to proceed alone in the evening. The now deceased and his friends Brian Dube, Wadzanai Sakadzo and Alfred Muteti agreed.

Shelter said as it was getting dark the now deceased's colleagues Brian Dube and Wadzanai Sakadzo came to where she was with the accused and told her that it was time for them to go home. This was in order as per her previous request and the accused raised no objection. She said in a friendly manner both Brian Dube and Wadzanai Sakadzo each held her hand pulling her and as persons she regarded as brothers there was nothing amiss about it. She told them to release her and let her walk on her own as she wanted to follow behind them with the accused. They obliged. By then Roselyn Philemon was ahead of them with the accused's young brother, Innocent Mapurisa.

Shelter said when she and the accused caught up with the accused's young brother, Innocent Mapurisa, she realized Innocent Mapurisa was having a misunderstanding with Wadzanai Sakadzo. She was not privy as to the cause of this misunderstanding. The now deceased then arrived and got in between Innocent Mapurisa and Wadzanai Sakadzo telling them not to fight. The accused was un-amused. Instead, the accused told the now deceased to let his young brother, Innocent Mapurisa, fight with Wadzanai Sakadzo. Shelter said at that point the accused suddenly pulled out a knife from the right side of his trousers pocket. She was terrified and screamed for help realising the impending danger. In fear she fled in the direction of her home. After a distance, and along the tarred road, she saw a group of people gathered. She could not ascertain what was going on as then people started to blame her for having caused the injury to the now deceased. She proceeded home.

Shelter dismissed the accused's version of events as false. She said at the time the accused pulled out the knife from his trousers pocket the accused was not under attack from anybody or involved in any altercation with any person. In fact, she said she was surprised by the accused's conduct.

Under cross examination, Shelter Mukaro dismissed as false the assertion that she was in love with one Alfred Muteti. She said Alfred Muteti, Brian Dube, Wadzanai Sakadzo and the now deceased were simply her fellow villagers whom she respectfully regarded as her brothers. She said the now deceased and his colleagues were of sober habits as they did not drink beer. Lastly, Shelter said it is untrue that Brian Dube and Wadzanai Sakadzo alleged that the accused was indecently assaulting her. Instead, none of them talked to the accused who was following Shelter and later walked behind them with Shelter after they had released Shelter's hands.

Wadzanai Sakadzo (Wadzanai)

Wadzanai grew up with the now deceased. They were friends and church mates. He only got to know the accused on 1 January 2017 at Bhuka Business Centre. Shelter Mukaro and Roselyn Philemon were his neighbours and regarded them as his sisters. The two girls requested Wadzanai, the now deceased, Brian Dube and Alfred Muteti not to leave them at the business centre later in the day but to go home with them. He later saw Shelter Mukaro and Roselyn Philemon in the company of the accused and one Innocent whom he later learnt to be the accused's young brother.

Wadzanai said when it was time to go home Alfred Muteti proceeded to go and alert Roselyn Philemon who was with Innocent Mapurisa and Wadzanai, together with Brian Dube, in turn, advised Shelter Mukaro who was with the accused. They both held Shelter's hands telling her it was time to go home. The accused followed behind and when they released Shelter, the accused walked behind them with Shelter. Roselyn Philemon was in front with Innocent and Alfred Muteti.

Wadzanai said when they caught up with Innocent Mapurisa, Roselyn Philemon and Alfred Muteti he heard Innocent Mapurisa saying “nxaa” a sign that he was unhappy. Wadzanai said he asked Innocent Mapurisa what was wrong. Innocent Mapurisa looked angry and was poised for a confrontation. Wadzanai said he retorted that he did not understand Innocent Mapurisa's conduct telling him that they had allowed the accused and Innocent Mapurisa to enjoy the company of Shelter Mukaro and Roselyn Philemon all day and that it was time to go home with their sisters. He said Innocent responded saying Wadzanai was disrespecting him. At that point the now deceased intervened to stop a confrontation between Innocent Mapurisa and Wadzanai explaining that the two girls were their sisters.

Wadzanai said the accused told the now deceased to let Innocent Mapurisa and Wadzanai engage in a fight. The now deceased intervened. At that point the accused said he was now dealing with the now deceased whom he pushed causing him to fall down. Wadzanai said Alfred Muteti rushed to try and rescue the now deceased as the accused had pulled out a knife and was sitting on the now deceased's chest. By then, the accused had cut the now deceased in the face with a knife on the forehead and below the left eye. Alfred Muteti failed to pull the accused away. The accused then stabbed the now deceased on the head as he sat on the now deceased's chest and tried to pull out the knife but failed. The accused immediately fled. Since they did not know the accused and Innocent Mapurisa, Wadzanai said they held Innocent Mapurisa but immediately released him as stones rained at them. Innocent Mapurisa also fled. The now deceased got up with the knife embedded in is head and walked towards home. When they followed they found that the now deceased had collapsed along the Masvingo–Beit Bridge road. Fortunately, an ambulance from Masvingo stopped and the now deceased was ferried to hospital.

Wadzanai said the accused's conduct surprised him as no one had attacked the accused or provoked him in any manner. He said the knife was in the deceased's head to the hilt (handle) and that only the handle was visible.

Under cross examination, Wadzanai Sakadzo said he and his colleagues never had an altercation with the accused. He disputed that the accused behaved in an indecent manner with Shelter Mukaro. He denied that the accused just fortuitously picked the knife but that he pulled it out of his pocket. Wadzanai insisted that he never fought Innocent Mapurisa but simply had a misunderstanding with him.

Alfred Muteti (Alfred)

Alfred regarded the now deceased as uncle and he knew the accused as they had written 'O' Level examinations at the same school. The now deceased, Wadzanai, Brian Dube, Shelter Mukaro and Roselyn Philemon were fellow villagers. He corroborated Shelter and Wadzanai on the request made by Shelter and Roselyn Philemon and how he later approached Roselyn Philemon to advise her that they were going home.

Alfred said he approached Roselyn Philemon who was with the accused's young brother Innocent Mapurisa. Roselyn Philemon obliged. As he was walking with Roselyn Philemon he heard Shelter Mukaro shouting for help. He rushed back.

Alfred Muteti said on arrival at the scene he found the accused wielding a knife and seated on top of the now deceased. The now deceased was holding on to the accused's hands to prevent being stabbed. Alfred said he tried to pull the accused from the now deceased as the accused was cutting the now deceased on the forehead and nose with the knife. Innocent Mapurisa prevented him by pulling Alfred away. The accused then stabbed the now deceased in the head and fled leaving the knife embedded in the now deceased's head. The now deceased got up and also ran away in the direction of their home. Alfred held Innocent but released him as stones were thrown at Alfred and his colleagues. Alfred said they later found the now deceased who had collapsed along Masvingo–Beit Bridge highway. When an ambulance stopped Alfred accompanied the now deceased to Masvingo General Hospital. He was present when the now deceased was sutured above the eye and on nose bridge. These injuries had been inflicted by the accused with the knife. He said since the knife was embedded in the now deceased's head he was transferred to Parirenyatwa Hospital.

Under cross examination, Alfred Muteti denied that he was in love with Roselyn Philemon. He denied that any of his colleagues attacked the accused or that the accused was under any threat. Alfred said none of his colleagues had a knife and that no one ever alleged that the accused had indecently behaved with Shelter Mukaro.

All the witnesses, Shelter Mukaro, Wadzanai Sakadzo and Alfred Muteti gave their evidence well. They materially corroborated each other on how the now deceased was fatally injured. They all dismissed the accused's version, that he was under attack and acted in self-defence, as false. They all disputed that the accused fortuitously picked the knife. Wadzanai and Alfred explained how the accused stabbed the now deceased.

It was evident to us that counsel for the accused had serious difficulties in cross examining Shelter, Wadzanai and Alfred. Her task was not an easy and enviable one. It was a herculean task for her. Indeed, she groped for meaningful questions but nonetheless failed to ask any relevant questions.

In our assessment, Shelter, Wadzanai and Alfred were clear, coherent and consistent. Shelter was the accused's girlfriend and would have no reason to lie against him. Further, we find no motive for the witnesses to falsify their evidence. They were credible witnesses and we shall place reliance upon their testimony.

The Accused

From the evidence before us and the accused's testimony it is clear to us that the accused's version of events is improbable and cannot reasonably be true. If the accused had met Shelter Mukaro, Roselyn Philemon, Wadzanai Sakadzo, Brian Dube and the now deceased for the first time that day at Bhuka Business Centre why then is he alleging Shelter Mukaro was in love with one of the deceased's colleagues? The accused dismally failed to prove this allegation.

The accused's story on how he ended up in possession of the knife is a very poorly thought account which even a kindergarten kid cannot believe. Even his own girlfriend saw him pulling out the knife from his trousers pocket.

Lastly, the manner in which the accused said he injured the now deceased was dismissed by Dr Dzowa, an expert witness, as improbable. Even common sense would dictate that it is impossible to have inflicted such an injury by throwing a knife from a distance at the now deceased. Indeed, both Wadzanai Sakadzo and Alfred Muteti saw clearly how the accused stabbed the now deceased. We are baffled that the accused believes this court would buy such a story.

The accused failed to prove the requirements of the defence of self-defence as provided for in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was not under any unlawful attack when he stabbed the now deceased nor was such an attack imminent. It is the accused who was simply the aggressor for no apparent reason except to probably foolishly believe that he was impressing his newly found girlfriend, Shelter Mukaro, who, instead, found his conduct frightening. The defence of self-defence is therefore not available to the accused.

From the evidence before us, the accused's intention when he stabbed the now deceased is clear. He intended to cause death and indeed he accomplished this mission.

Accordingly, the accused is found guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to murder with actual intent.

VERDICT – Guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – murder with actual intent.

This matter is a matricide matter. A son killed his mother. The material facts in this matter are not in serious dispute. They may be summarised as follows;

In 2006, the accused consulted his mother, the deceased in the present case, about his settled intention to marry. She denied him this right. This, according to the accused, was the genesis of his troubled relationship with his then estranged and now deceased mother. She had made it abundantly clear that he was to live in bachelorhood for his entire life. In 2012, the accused decided to marry against his mother's cherished wish. She remonstrated with him and demonstrated her displeasure by absenting herself from the traditional ceremony to welcome a daughter-in-law. The problems persisted in the manner which he outlines both in his confirmed warned and cautioned statement, his Defence Outline, as well as his evidence-in- chief.

The case against the accused was woven around his own statement to the police recorded two days after the death of his mother. That statement was duly confirmed by the magistrate on 19 May 2014 some five days after he killed his mother. It is important to quote his statement in extensor in order for the defence put forward to be understood in its proper context. He says:

“I do admit the charge levelled against me. The reason for this is that the parental bondage between me and my mother had broken down because of problems between the two of us. When I got married in 2012, my mother ran away from her duty of welcoming her daughter-in-law….,. Three days after my marriage I suffered an erection dysfunction (sic) and when I told her she said it was a spiritual issue and I had to go and consult prophets and traditional doctors for solution. She refused to accompany me to seek remedy saying I had not followed her wish that I should not get married and she was not my mother. I asked her that if she was not my mother could she tell me where my real mother was but she kept quite (sic).I then consulted a number of local prophets and traditional doctors who all pointed out that my mother was the source of all my troubles because I should have not married and she was using me as her spiritual husband. That did not surprise me because most of the time I used to dream of making love to her. I did not confront her for a while as I was gathering the courage. After a while I had the courage and I asked her about what the prophets had said and she denied having anything to do with my problems. I exchanged words with her and she had to report me to Nyanga Police….,. I was acquitted due to lack of evidence since there was no independent evidence to substantiate my mother's claim that I had verbally assaulted her whilst pointing her a finger. I then left my mother's homestead and went to lodge at Clive Melinda's homestead….,. Even though I had left my mother's homestead, we continued to have squabbles and I had to go to Watsomba sometime in 2013 to inform my uncles about the persistent problems between me and my mother. My uncle, baba wa Nyasha, and another who I only know as Longchase advised me to retain (sic) home and they promised to come and help solve our problems.”

He gives an insight into another possible source of problems between him and his mother on the same page where he states:

“In January 2014 my niece, Tinashe Lapoyo, phoned from Banket informing me that my mother was not giving him and his siblings their 50% share of the money which was realized from their father's house rentals. Tinashe Lapoyo is my late sister's son whose father is also late and the house of his parents, which is in Norton, was being administered by my mother. Tinashe had been complaining that my mother was abusing the money without giving them their share. I told my mother what Tinashe had said and she said that she could only discuss this with the bigger Lapoyos. In April 2014 I went to Banket to look for the Lapoyos and I found Sekai Lapoyo who is a sister to my late brother-in-law and I brought him to my mother's homestead to solve the issue of how the rentals of her brother's house was going to be managed (sic). Sekai Lapoyo, my mother held a meeting and we agreed that Tinashe Lapoyo was not supposed to get anything since he had refused to go to school. The money was supposed to be used to support Upenyu Hamunakwadi, my late sister's child, who she sired from her previous marriage before she was married to Lapoyo and Best Lapoyo who are still going to tertiary school. In April 2014, Upenyu Hamunakwadi was given US$200= meaning that in May 2014 Best Lapoyo was supposed to be given the same amount. In May 2014 my mother said that she had lost details of Best's bank account and she had sent Best Lapoyo's money through Upenyu's account. When she was later informed by Best that Upenyu had squandered his money she began to cry and in a few days she became sick possibly due to depression…,.”

Getting closer to the day of this evil deed he goes on in his own words which were not translated by anyone into English:

“On the 11^th May 2014 she was discharged from hospital and she passed through my homestead on her was (sic) to fetch some water and I welcomed her. On the 14^th May 2014 I was passing through my mother's homestead proceeding to my friend Wonder Mudiwa's homestead when I saw my mother's niece, Mai Emily Mhlanga, whom I had a confrontation with at Nyanga Hospital because of her refusal to let me use my mother's phone to phone a relative had visited (sic). I then went to her and asked her to explain to me why she behaved the way she did at the hospital. Before she could say any word, my mother interjected and told me that I should leave her alone and she regrets to have me as a son. I then pushed my mother into a granary hut and closed the door and chased her niece, Mai Mhlanga, from my mother's homestead. When I came back from chasing Mai Emily Mhlanga I was just cross and that is when committed this horrific act. I went into the main house and took a nylon cloth belt and told her that today was the end of our wars as I was going to kill her. She then fell to the ground facing down possibly frightened by what I had just said. I then used the belt to strangle her whilst pressing her down with my knees. I then set on top of her still choking her with the belt until she died. I then left her like that, got out of the hut and closed the door. I proceeded to my homestead where I found my wife at home.”

He went on to describe how he had attempted to leave the area but failed in this bid when he could not raise the bus fare for the trip. He went on to give detail of how he kept his wife unaware of his dark deed by pretending to escort his visitor away from home then surreptitiously finding his way back to his mother's homestead in order to put final touches to this horrible act and make it look like his mother had committed suicide. He first went into the granary and covered his mother's body with a cloth and a tent. He went to pass time with friends but then noticed that the persistent Mai Mhlanga and two others were back at the deceased's homestead looking for the deceased. He asked her why she had not gone to report him to the police as she was wont to do. She had no bus fare, she said. The ladies asked him where his mother was. He lied that he had seen her going towards her garden. They then left. Later, to his wife, he created a false visit to a neighbour as a means to find his way back without arousing his wife's suspicions. He described his final act in trying to stage-manage a suicide in the following terms:

“…, and proceeded to my mother's homestead around 1900hours. I proceeded to the granary hut where I carried the body of my mother and took it into her bedroom. I carried it on my shoulder and as I was about to enter her bedroom I removed the body from my shoulder put it in my arms and rested whilst supporting its weight with my legs. I rested for a few seconds and thereafter entered the bedroom. I then took the belt I had used to strangle her with and tied it on her neck. I took a trunk and placed her body and tried to lift her body toward the beam but failed because of the low height of the trunk. I then went to the dining and took a kitchen cupboard and then place her body on top of the cupboard and put the belt around the truss. I lifted the body being supported with the cupboard and tied the belt to the beam. After that I removed the trunk and left the body hanging. I had a hard time in doing all this but this was the only thing I could have done in trying to cover up on what I had done.”

In his Defence Outline, prepared with the assistance of his legal practitioners, the accused makes no mention of the little fight over the rentals revenue stream between him and his mother. He dwells a lot on his so-called erectile dysfunction whose effects to us remained obscure in light of the fact that within a year of his marriage they were blessed by a child. The witnesses who testified in court were unable to confirm the allegations of witchcraft against his mother nor were they aware that he had made such claims against his mother during her lifetime. His defence was that he had killed his own mother as a result of cumulative emotional, psychological and mental pressure coupled with a high degree of provocation. I will proceed to deal with the last defence, provocation, and revert to the other defences put forward by the accused.

In our assessment of the evidence placed before us there is no doubt that the accused believed, rightly or wrongly, that his mother was responsible for all his misfortunes, real or imagined.

The witchcraft provocation defence

The Criminal Law (Codification & Reform) Act [Chapter 9:23] (“the Criminal Law Code”) has codified the Zimbabwean common law position regarding provocation as a defence.

Section 239 of the Criminal Law (Codification & Reform) Act [Chapter 9:23] sets out the circumstances under which provocation can successfully be raised as a partial defence to a charge of murder.

Section 238 of the Criminal Law Code provides that provocation shall not be a defence to crimes other than murder. Section 239 then elaborates when it may be a partial defence to the crime of murder. It is a partial defence, if, after being provoked, and as a result of provocation, the accused does not have the intention or realisation referred to in section 47 or; although the accused has the intention or realisation referred to in section 47 but has completely lost his self-control in circumstances where the provocation was sufficient to make a reasonable person lose his or her self-control. Then, in those circumstances, the charge of murder will be reduced to culpable homicide.

Put differently, if a court finds that a person charged with murder was provoked but what he did here the intention on realisation referred to in section 47 or the provocation was not sufficient to make a reasonable person in the accused's position lose his self-control the accused shall not be entitled to a partial defence in terms of section 239(1) but the court may regard the provocation as mitigatory only.

The question then arises whether, when the accused says he was provoked by his mother's practice of this dark art, the court ought, in the peculiar circumstances of this case, to accept that as a partial defence in terms of the Criminal Law Code.

Witchcraft and the law are different arts; the former residing in the realms of cultural norms and the latter in legal norms. When legal norms and cultural norms conflict, the law must resolve the conflict.

Many cultures across Africa embrace traditional healers and a persistent belief in witchcraft. The African concept of a witch does not encompass the potentially benign Wiccan or Pagan which, in some western countries, enjoy the status of an alternative religion. To the contrary, there is little redeeming about African witches who, through sheer malice, either consciously or sub-consciously employ magical means to inflict all manner of evil on their fellow human beings. Someone is either born a witch or can learn witchcraft from a traditional healer.

The attempts of the common law courts to address witchcraft-inspired violence differed markedly from the suppression tactics of the various legislative initiatives. Whereas legislation recognises the widespread violence and seeks to curtail it, the criminal law has often recognised the belief that gave rise to the violence and carved out a witchcraft-provocation defence that could be offered as a mitigating factor in cases of witchcraft-related violence.

Under this theory, accused persons could reduce their crimes or punishments upon proof that they believed they, or persons under their immediate care, were being bewitched and that this belief caused them to temporarily lose self-control. In some ways, this theory provides tacit recognition that in certain communities killing a “witch” is not merely explainable, or excusable, but praise worthy.

In our jurisdiction, in 2006, the Witchcraft Suppression Act was amended to legalise accusations of witchcraft and to allow the State to convict a person and punish her when it deems witchcraft harmful. See CHANDRA KUMAR “Witches, Witch Doctors and Men of Reason” Mail & Guardian Online September 11 2006 on http://www.mg.co.za).

There is a thread of cases, both in our jurisdiction as well as in South Africa, which show a vacillation between the recognition of witchcraft and a willingness to aid the suppression of the belief in witchcraft. This takes the form of treating the belief as only mitigatory but only as affecting the element constitution a defence to a charge.

In my respectful view, at least the basic elements required for a successful defence of witchcraft provocation should be;

1. The act causing death must be proved to have been done in the heat of the passion, that is in anger; fear alone, even fear of immediate death is not enough.

2. The victim must have been performing in the actual presence of the accused some act which the accused genuinely believed and which an ordinary person of the community to which the accused belongs would generally believe, to be an act of witchcraft against him or another person under his immediate care.

3. A belief in witchcraft per se does not constitute a circumstance of excuse or mitigation for killing a person believed to be a witch or wizard when there is no immediate provocation act.

4. The provocation act must amount to a criminal offence under criminal law.

5. The provocation must be not only grave but sudden and the killing must have been done in the heat of passion.

See Eria Galikuwa v Rex 1951 (1) E. Afri Court of App 175…,; an appeal case from Uganda.

Where this criteria is met, the court in other jurisdictions have considered and accepted the witchcraft provocation defence as long as it can be shown that the accused killed in the heat of passion. See John N Rudowiili v Redubliz 1991 TLR 102 (CA).

In that case, the Tanzania Appeal Court reduced the accused's capital murder conviction to manslaughter with a 12 year prison sentence after considering the accused's mitigation plea based in the defendant's belief in witchcraft. The accused had axed his grandfather to death after the latter had allegedly threatened to kill the accused through witchcraft. These cases also in a way introduce the concept of anger as being intertwined with provocation. In my respectful view, provocation and anger are different concepts just as cause and effect are.

In criminal law, the term provocation seems to be used to include both concepts thereby throwing light on the accused's conduct. Thus, when considering the phrase “in the heat of passion” a court is assessing the subjective frame of mind which has triggered the act.

The concept of provocation indicates a situation in which the provoker elicits anger or wrath of the provoked by means of a challenging or defiant behaviour, and the latter, in reaction to the provocative behaviour, commits a criminal act. See S v Mokonto 1971 (2) SA 319 A.

Legally, the emotional response of the victim to the assaulting or provocative words or conduct is relevant. When a person has been provoked, anger and rage are the predominant emotions that are experienced.

We have considered the accused's defence throughout this grim and macabre episode. We have scrutinized his own description of the events leading up to the killing of the deceased. We were unable to find that she had in any way provoked him in the plain and ordinary meaning of this word. He did not act in the “heat of passion” which would have resulted in loss of self-control as would prevent him from formulating the requisite intention or to realise the risk involved in the act constituting the crime charged. On his word, the accused planned the timing of the execution of his mother. He chose the method of killing her. He knew that there would be relatives who would visit her to check upon her as she had recently been discharged from hospital. He planned on how to deal with that too. He did not want his wife to know what he was determined to achieve and effectively deflected her by various ploys. He casually announced his decision to kill her causing his victim to pass out, probably in shock. He then proceeded to strangle her in a most crude fashion instantly and mercilessly killing her as he had intended.

His belief in witchcraft played no part in this chilling murder.

The accused wanted his mother out of the way so that he remains the only person in charge of the two deceased estates of his late father and late sister.

Put in another way, we find that the accused did not react to an act of provocation; plain or witchcraft-provocation. He carefully planned this murder and executed it with cold blooded precision feigning suicide at the end of it all to deflect attention from himself.

There is a small issue of the two estates which his mother was the executor. These revenue streams from his late father and sister, in our view, provided sufficient motive to wish his mother out of the way so that he is left in physical control of the estates. This, in our view, explains why, despite his belief in witchcraft, he remained physically closely connected to his mother in spite of the advice from his uncles that he should migrate to a more distant location from his mother.

In the end, we are satisfied, by his own admission, that when he announced to his mother that he had decided to end the war between him and his mother on 14 May 2014, by killing her, he was genuinely announcing his true desire and intention to kill.

He was under no emotional stress when he planned to kill her over time; it cannot be argued with any conviction that he was suffering from some mental disorder which induced in him non-pathological criminal incapacity as a result of emotional stress. The defence of witchcraft provocation appears to be a carefully engineered ploy to raise a red herring to deflect this court from making a finding regarding his true state of mind. We are convinced that the detail reflected in his warned and cautioned statement correctly reflects a perverted mind rather than an emotionally psychologically stressed mind. This is the reason why, in our view, there is no mention of the two deceased estates in the Defence Outline as well as in his evidence in chief. So carefully rehearsed in his mind was this defence that counsel for the State failed to pursue this aspect during cross-examination. Even if it were to be assumed in his favour that his belief in witchcraft played a part in prompting him to kill his mother, the act causing death was not done in the heat of the passion. His victim was not performing an act which the accused genuinely believed and which an ordinary person of the community to which he belongs would generally believe to be an act of witchcraft against him or another person under his immediate care. She was going about her normal domestic chores when the accused announced to her that her time on earth was up since he had resolved to end their wars by killing her.

We find that when he tied his mother with the nylon belt, he intended to kill her by that means. He was not reacting to anything her mother had done or said. He was not angry but determined to carry out a well-planned plot kill her.

He is therefore found guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

This is an appeal against the judgment of the High Court sitting at Hwange dated 9 November 2017.

It is common cause that the appellant was arraigned before the court a quo and charged with murder. It was alledged that on 7 October 2014, and at Zenka Village, Binga the appellant wrongfully, unlawfully and intentionally killed Fortunate Mutale.

The appellant tendered a plea of not guilty to the charge. After a full trial he was convicted of murder with actual intent. The court found that the murder was committed in aggravating circumstances and the appellant was sentenced to death.

Whilst the appellant noted an appeal against sentence only, in view of the penalty of death imposed upon the appellant, it is imperative that the appeal should lie against both conviction and sentence.

In this regard we therefore requested for supplementary submissions from counsel to address us on the question of conviction. We are indebted to both counsel for their prompt submissions.

The accused killed the deceased in cold blood, in a very callous way, chopping a person's head with an axe several times until when the head is decapitated can only mean one thing - that he desired death. Death was his aim and object. The accused is accordingly convicted of murder with actual intent….,.

In terms of section 47(2)(c), as amended by the General Laws Amendment Act No.3 of 2016, a murder is committed in aggravating circumstances where the murder was preceded or accompanied by physical torture or mutilation inflicted by the accused on the victim. Decapitation is mutilation on the deceased.

The accused who is facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] offered a limited plea to the lesser charge of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State declined to accept the limited plea.

The charge is that on 15 May 2017, at Down Town Bar, Mashingaidze Business Centre, Zaka, Masvingo the accused unlawfully and with the intent to kill stabbed Peter Chinyaka once on the right leg and once on the collar bone causing his death.

Both the accused and the now deceased were well known to each other. It is common cause that on 15 May 2017 the accused and the 30-year-old now deceased were among beer patrons enjoying themselves drinking beer, dancing to music and watching TV in Downtown Bar at Mashingaidze Business Centre in Zaka, Masvingo. The State case is that when the accused entered the bar he pulled out an okapi knife and went on to challenge other beer patrons in the bar waiving the knife. It is alleged the now deceased felt offended and took up the challenge. The now deceased is said to have proceeded to kick the accused who fell down.

It is the State case that as the accused lay down he stabbed the now deceased on the right leg above the ankle after which he stood up and fled from the bar still armed with the knife. The now deceased is said to have chased after the accused out of the bar. The State alleges the accused then stabbed the now deceased with the okapi knife on the collar bone outside the bar after which he fled from the scene. The now deceased is said to have returned to the bar bleeding where he collapsed and died.

In his Defence Outline, the accused said he started to drink beer at the business centre at 1600hrs on that fateful day. The accused said he partook a cocktail of opaque beer called “scuds” which he mixed with a lethal brew called “chimusoja” with a very high alcohol content and also black label. The accused said when he was in Downtown Bar the now deceased pestered him asking for beer but the accused replied that he no longer had any money to buy the beer for the now deceased. The accused said around 2100hrs the now deceased assaulted him causing him to fall down. The accused said he stabbed the now deceased on the leg and fled from the bar. The accused said he later realized that he too had been injured on his leg but he has no recollection of how he got injured or at what stage. The accused said he was shocked to be arrested in relation to the now deceased's death.

The accused puts into issue all the evidence incriminating him.

It was indeed an arduous task to try and appreciate the accused's defence throughout this trial.

Was the accused denying stabbing the now deceased at all? If so, why then was he offering a limited plea of the charge of culpable homicide?

Is the accused alleging he only stabbed the now deceased on the leg and not on the collar bone?

Again, the accused seems to say that he was so intoxicated to such an extent that he has no recollection of how the now deceased was fatally injured. This would probably entail that allegation that the intention to kill was vitiated due to the high degree of intoxication.

These are the issues we grappled with in this case.

The evidence of the accused can be summarized as follows;

The accused said from about 1600hrs he spent $14= drinking the opaque beer, the lethal brew called “chimusoja”, and black label when this incident happened. He said when he went into Downtown Bar he found the now deceased drinking beer with one Francis Magweregwede. The accused said when the now deceased asked him to buy beer for the now deceased he told him that he no longer had money but the now deceased would not accept that. The accused said as a result the now deceased attacked him. He explained how the attack took place.

The accused said the now deceased followed him and slapped him in the face. The accused said he was carrying a knife which he had intended to use to skin a beast for the Beef Committee that day but the said beast was however not slaughtered. The accused said he pulled out the knife from his pocket. He said the now deceased kicked him on the head causing him to fall. The accused said he was kicked as he lay down trying to get up. He said when he managed to get up he fled from the bar. From that stage he said he has no recollection of what transpired. Besides this altercation the accused said he had no previous issues with the now deceased.

Under cross examination, the accused's evidence became muddled up further.

The accused denied waiving the said knife at all in the bar. He however admitted stabbing the now deceased on the leg. The accused insisted he had no recollection of what transpired as he was excessively drunk. He even disowned his confirmed warned and cautioned statement in which he admitted to have stabbed the now deceased twice, once on the leg and once on the shoulder. He now seemed to allege that these words were put in his mouth by the police.

In support of its case, the State led evidence from Passmore Mhaka, Peter Mubaiwa, Raymond Mamvura and Dr Zimbwa whose evidence was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State led viva voce evidence from Jonisias Chiringa, the proprietor of Downtown Bar, Francis Magweregwede, the now deceased's drinking mate, and the Investigating Officer, Sgt. Mbonisi Kaweni.

A total of three (3) exhibits were produced by consent, being Exhibit 1, the post mortem report; Exhibit 2 the accused's confirmed warned and cautioned statement; Exhibit 3(a) the okapi knife; and Exhibit 3(b) being the certificate of weight relating to the okapi knife.

As per exhibit 3(b), the okapi knife weighs 0.055kg, its length is 24cm and the blade is 11cm. Indeed, an okapi knife is a lethal weapon if used to attack another person - especially in relation to the vulnerable part of the human anatomy.

The cause of the now deceased's death is not in dispute. As per exhibit, 1 the post-mortem report, the doctor noted the following injuries;

“1. Deep stab wound in right supravicular fossa, reaches apex of right lung; lung is puncture (air expels on chest compression); ±4cm wide, smooth straight edges.

2. Deep laceration right tibia area ±7cm (to bone level).”

The cause of death is stated as haemorrhagic shock arising from stab wounds.

The narrow question we have to answer, therefore, is whether the accused inflicted the fatal injuries.

We first deal with the evidence admitted in terms of the Criminal Procedure and Evidence Act [Chapter 9:07].

Dr Zimbwa

Dr Zimbwa carried out the post mortem of the now deceased and authored exhibit 1.

Raymond Mamvura

He is a police officer based at Zaka police station and was the one who attended the scene. He found the now deceased already dead lying on the floor with stab wounds on the right ankle and right collar bone. He is the detail who arrested the accused and observed that the accused had a wound on his right leg. He then recovered the okapi knife, exhibit 3(a), after which he witnessed the recording of the accused's confirmed warned and cautioned statement.

Peter Mubaiwa

Peter Mubaiwa is a local teacher at Mashingaidze Primary School near the business centre where this incident happened and was known to both the accused the now deceased. He was telephoned at night on 15 May 2017 and asked to rush to Downtown Bar in order to ferry the now deceased to hospital in his vehicle. As he was about to leave for the business centre the accused passed by, limping, and he offered to also take him to hospital but the accused refused. He drove to Downtown Bar and found the now deceased already dead.

Passmore Mhaka

He was one of the beer patrons inside Downtown Bar. He said at around 2130hrs he saw the accused holding an okapi knife, exhibit 3(a), shouting that he would kill anyone who dared to provoke the accused. Moments later, he saw both the accused and the now deceased in a scuffle and the accused fell down but still holding the knife. He said the now deceased tried to kick the accused's hand holding the knife but missed and he saw the accused getting up and running out of the bar with the now deceased chasing after him. He said within seconds the now deceased returned to the bar with his T/shirt soaked in blood. He saw that the now deceased had a deep cut on the right collar bone. He then observed the deceased sitting near the counter where he collapsed and died.

We now turn to viva voce evidence;

Jonisias Chiringa (Chiringa)

Jonisias Chiringa is the proprietor of Downtown Bar and both the accused and the now deceased were local beer patrons who frequented his bar.

He said on 15 May 2017 he arrived at the bar at 20:00 hours where he started to sell beer. He saw both the accused and the now deceased in his bar.

Jonisias Chiringa said the now deceased approached him requesting for a song by Allen Chimbetu called “Dear Rosy”. The now deceased was in a very jovial mood saying he wanted to dance and enjoy that song. He said as the now deceased was dancing to the song Chiringa went to the toilet out of the bar. Upon his return the song had finished playing. The now deceased was standing by the counter looking sad. Chiringa said he asked the now deceased if he could repeat that song or play other songs. The now deceased then said he was worried as the accused was waving a knife threatening the now deceased saying he did not care about the now deceased's big stature because the accused was capable of killing the now deceased like a chicken.

Jonisias Chiringa said the now deceased reacted by kicking the accused who fell down still holding the knife. He said the now deceased tried to step on the accused's hand holding the knife but the accused moved the hand. As a result, he said the now deceased proceeded to kick the accused. The accused then stood up fleeing. At that point Chiringa said the now deceased held his thigh as he had been stabbed but still ran after the accused who went out of the bar. He said seconds later the now deceased returned to the bar injured on the collar bone with blood flowing down up to the now deceased's shoes.

He said that the now deceased said the accused had stabbed him and that he was dying.

Jonisias Chiringa said the now deceased's last words were that the accused's family would be haunted by an avenging spirit.

Chiringa said the now deceased failed to stand and sat down breathing heavily. Realizing the gravity of the situation, Jonisias Chiringa ran out of the bar to find transport to ferry the now deceased to hospital. A local teacher, one Mubaiwa, answered his call saying he had seen the accused limping. Chiringa said upon his return to the bar he found the now deceased dead.

Jonisias Chiringa said the now deceased was not drunk. Instead, he said the accused was moderately drunk as he was not staggering and was able to fend off the now deceased's blows as the now deceased kicked him about three times. Further, he said the accused was able to flee running from the now deceased. Chiringa said the now deceased was heavily built and was regarded as a giant whereas the accused was of a small stature. Chiringa said he was very much familiar with both the now deceased and the accused's state of sobriety or degree of intoxication as his regular patrons.

Francis Magweregwede (Francis)

Francis was drinking beer with the now deceased when this incident happened. He said the accused was moderately drunk as he could properly dance to music, walk properly, and, later on, fled from the now deceased without staggering.

Francis Magweregwede said when the accused and the now deceased conversed, Francis was seated on a bench some 5m away watching television. He said suddenly the accused fled from the now deceased as the accused had a knife. Francis said he tried to intervene but other patrons told him that the accused had a knife. He said he saw the accused lying down but could not tell what caused him to fall. He said the accused then stabbed the now deceased on the leg after which the accused stood up and fled out of the bar. The now deceased chased after him.

Francis said he tried to follow the two but met the now deceased by the door of the bar. The now deceased had been severely injured with his T/shirt soaked in blood. He said the now deceased had an upper chest injury.

According to Francis Magweregwede the now deceased said he was dying and that his avenging spirit would forever haunt the accused's family. Thereafter, the now deceased collapsed and died and he saw a deep wound on the right leg and on the chest.

Francis said the report the now deceased made was that he had been stabbed by the accused at the veranda of Downtown Bar, he was dying, and that his avenging spirit would haunt the accused's family.

Sergeant Mbonisi Kaweni (Sgt Kaweni)

In our view, nothing turns on the evidence of Sergeant Kaweni, the investigating officer, as his testimony is more of formal evidence. He is the one who recorded the accused's confirmed warned and cautioned statement and caused the accused and witnesses to make indications. He confirmed the accused had an injury on his thigh, possibly caused by a knife, and that the accused could have injured himself as he allegedly waived the knife in the bar moreso as the now deceased did not have a knife and never dispossessed the accused of the knife. He said the accused himself could not say how he was injured.

The evidence of the State witnesses was largely uncontested at all.

In order to answer the question as to how the now deceased was fatally injured, or, precisely as to who fatally injured the now deceased; one can simply say reps ipsa loquitor (the facts speak for themselves).

The accused's own confirmed warned and cautioned statement answers this question. This is what the accused said;

“…,. I stabbed Peter Chinyaka with an okapi knife once on his leg and once on his shoulder after he slapped me with open hands on my face, kicking me several times on the stomach, and throttling me as he was taking me outside the bar. He was assaulting me because I had denied him beer (sic) I was drinking. When I stabbed him, I then fled, and, after I had run for an estimated distance of 300m, I discovered that I was bleeding on my left thigh. I do not know what injured me.”

It is clearly foolhardy for the accused to now try to allege that he did not stab the now deceased fatally on the collar bone. Despite the obvious half-truth and lies in his statement that he was throttled, the accused is clear in that statement that he is the one who stabbed the now deceased in the chest. This version finds favour with the evidence of the State witnesses to the effect that as soon as the now deceased ran after the accused out of the bar, the now deceased returned within seconds, injured, after which he immediately collapsed and died.

The only inference one can make is that he had been fatally stabbed by the accused who had bolted out of the bar wielding the okapi knife.

Lastly, in terms of section 221(i) of the Criminal Law Codification and Reform Act [Chapter 9:23] the accused dismally failed to show that his degree of intoxication vitiated the requisite mens rea to commit the offence of murder.

From the evidence before us it is untruthful that the accused did not appreciate what he was doing or the events of that day, never mind the falsehoods in his confirmed warned and cautioned statement. To illustrate this point, the accused had a clear recollection of the following as per his own evidence;

(i) The time he arrived at the business centre at 1600hrs.

(ii) The type of beer he consumed; “scuds”, “chimusoja”, and black label.

(iii) The exact amount of money he spent on the beer - $14 and the change he remained with which is $1.

(iv) The exact manner he was attacked by the now deceased; that he was slapped in the face, kicked in the head; and how he fell down and kicked in the stomach.

(v) That he stabbed the now deceased on the leg; how he got up and ran out of the bar.

(vi) That he met a local teacher, Peter Mubaiwa, who offered to take him to hospital and that he refused.

(vii) That he realized he was bleeding from his leg after running for about 300m.

The only time the accused pleads amnesia relates to how the now deceased was stabbed on the collar bone!

No reasonable court can believe such evidence.

Both Jonisias Chiringa and Francis Magweregwede explained why they believed the accused was moderately drunk. Indeed, this explains how he managed to outpace the now deceased who was virtually sober.

For those reasons we dismiss the accused's evidence that he was hopelessly drunk to such an extent that mens rea would be vitiated.

Our finding is that it is the accused who stabbed the now deceased with the okapi knife on the collar bone. The degree of force used was severe in that the knife damaged the lung. The intention was to cause death nothing else. The now deceased died immediately.

In the result, the accused is found guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to murder with actual intent.

VERDICT

Guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – murder with actual intent.

In S v Mugwanda 2002 (1) ZLR 574 (S)…, the Supreme Court held that:

“For a court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt either;

(i) The accused desired to bring about the death of his victim and succeeded in completing that purpose; or

(ii) That while perusing another objective, the accused foresaw the death of his victim as a substantially certain result of the activity and proceeded regardless.”