What is clear, from the evidence led, and accepted by the court, is that the accused armed himself with a log, as described by the deceased's wife, and used it to punish the deceased by hitting him on the head until the log broke. By using that log on the deceased, the accused must have foreseen the possibility of him causing serious injury to the deceased and was reckless as to whether or not death occurred. There is no way, under these circumstances, that the accused could be found guilty of culpable homicide.

In terms of Section 254 of the Code, an accused person charged with the crime of murder can be found guilty of culpable homicide if "all the requirements for defence of person specified in section two hundred and fifty-three are satisfied except that the means used to avert the unlawful attack were not reasonable in all the circumstances."

Section 254 of the Code provides as follows:

"If a person accused of murder was defending himself or herself, or another person, against an unlawful attack when he or she did or omitted to do anything that is an essential element of the crime, he or she shall be guilty of culpable homicide if all the requirements for the defence of person specified in section two hundred and fifty-three are satisfied in the case except that the means he or she used to avert the unlawful attack were not reasonable in all the circumstances."

In this case, the accused failed to satisfy the requirements of the defence of person. If he had satisfied all of them "except that the means he used to avert the unlawful attack were not reasonable in all the circumstances" he would have succeeded in relying on the defence of person as a partial defence to the charge of murder. He would have been found not guilty of murder but guilty of culpable homicide. The fact that he failed on all the requirements of section 253(1) of the Code means that the partial defence provided in section 254 of the Code is also not available to him.

The facts, which are not in dispute in this case, are that on 29 February 2008 the deceased was a passenger in a Matongo Bus which was travelling from Rusape to Mutare via Sherukuru area in Manicaland. The accused was the driver of the bus.

Upon arrival at Gonde Muchakata bus stop in the Sherukuru area, the deceased and other passengers disembarked from the bus. Immediately after alighting from the bus, the deceased picked a quarrel with the conductor, and the assistant conductor, over the deceased's alleged non-payment of luggage fare. The conductors resolved to take the deceased's luggage along with them pending payment of the disputed fare.

The deceased protested against the decision by the two conductors by going in front of the bus in a bid to stop the driver from driving away with his luggage. For close to thirty metres, the deceased walked in front of the moving bus but his protestations did not sufficiently persuade the driver to stop the bus.

In desperation, the deceased jumped onto the bumper, or cow-catcher, of the bus and continued with his plea to stop the bus. The deceased fell from the moving bus and was run over by the bus.

The result was a fatal accident. The deceased died on the spot.

The State has preferred a charge of murder with actual intent against the accused person.

The State relied on the viva voce evidence of three witnesses; Gordon Mwando, Leonard Osweld Marutawana, and the attending detail, Ass. Inspector Lloyd Paradza, while the defence relied on the sole evidence of the accused.

During the brief addresses to the court, both counsels accepted that the totality of the evidence tendered could not support a conviction of murder with actual intent, but that, if anything, the evidence pointed to the possibility of a verdict of murder with constructive intent.

Counsel for the accused was, at one stage, tempted to persuade the court to consider returning a verdict of guilty to culpable homicide but, on reflection, he abandoned that line of argument and conceded the proper verdict was murder with constructive intent.

The accused's counsel took issue with both witnesses as to when exactly the deceased rushed to the front of the bus.

The thrust of that part of his cross-examination was to try and demonstrate that the accused could not have seen the deceased in front of the bus because the deceased must have moved to the front of the bus after one of the conductors had signalled to him to take-off, and the accused, therefore, concentrated more on checking his right hand side as he manoeuvered the bus from a parking position into the main road.

The second issue which counsel for the accused emphasized was that the deceased must have jumped onto the bumper of the bus at a time the bus had gathered speed, as opposed to the bus gathering speed following the deceased's hanging onto the bumper.

To us, these are not the decisive issues in this case. If anything, these are peripheral issues to the issue before the court.

What the court deems to be important is that for close to thirty metres the deceased was seen by the first two State witnesses (and therefore must have been seen by the accused) protesting in front of the moving bus which was being driven by the accused person. Not only that, but the deceased was further seen by the witnesses jumping and holding onto the bumper of the moving bus and hitting the windscreen of the bus directly in front of the accused, and that the bus continued to move and picked up speed for a distance of about forty metres, as a result of acceleration by the accused, before it eventually stopped, but only after running over the deceased who had fallen off the bus.

Both State witnesses were inside the bus and in a vantage position.

Gordon Mwando, whose credibility we have found to be beyond reproach, testified that, in his own assessment of the accused (deriving mainly from the revs of the bus) appeared to have aimed at scaring the deceased with his bus.

We accept this position that initially revving the bus slowly, but subsequently increasing the revs, the driver wanted to scare the deceased away.

But we will also accept that literally pursuing the deceased with a bus, and continuing to drive the bus for such a distance, and increasing speed at a time the deceased was hanging by the bumper of the bus, the accused must have subjectively appreciated that a fatal accident would occur and the accused's continuing with such reckless conduct led to the inevitable death of the deceased.

Adopting a wholistic view of the evidence that has been tabled before us, we accept as a finding of this court that when the deceased realised the futility of his pleas with the conductor, and his assistant, not to take his luggage away with them, the deceased went to the front of the bus and protested, or pleaded, with the accused and his crew members not to drive away with his luggage.

We also accept it as a finding of this court that the accused, with his eyes wide open, and in full view of the deceased, drove his bus behind the deceased for about thirty metres from his point of take-off. His motive was to scare off the deceased.

We also accept it as having being proved beyond a reasonable doubt that in a desperate attempt to stop the bus, the deceased jumped onto the bumper of the bus and continuously hit the windscreen on the driver's side in an attempt to stop the bus, and that at that stage, but still in an effort to either shove off, or scare off, the deceased, the accused increased the speed of the bus as he drove it for a distance of about forty metres before the deceased succumbed, dropped off the bus and was fatally injured by the right front wheel of the bus. The accused was only able to stop after running over the deceased who died on the spot.

It is our perception, or appreciation, of the evidence placed before us that it points to a verdict of murder with constructive intent.

I now will deal with each Count as follows.

Count One

It is common cause that on 12 May 2002 there was a beer drink at Plaxedes Ndlovu's homestead in the Wabayi area under Gwanda District. The deceased, and other villagers, were present.

The accused had an argument with one Andrew Siziba over an amount of Z$250=. Thereafter, the accused went about forcibly drinking other patrons' beer without their consent. Stephen Sikhosana, who was amongst the patrons, advised him against his unruly behaviour to no avail. A misunderstanding then arose. At that stage, the accused produced an Okapi knife. Stephen Sikhosana and Gillian Dube tried to disarm him but they failed. The accused jumped over the fire and stabbed the deceased under the armpit – who, at that time was sitting around the fire.

He also stabbed John Moyo on the neck and then ran away.

The accused also stabbed Plaxedes Ndlovu once on the left shoulder and once on the left arm.

Of note is that the accused was a turbulent person on the night in question as he went about drinking other people's beer. He went about stabbing people without provocation. He appeared drunk.

We find that the accused acted negligently in stabbing the patrons at the beer drink without provocation. He used a knife, which is a lethal weapon, at random. In so doing, he foresaw the possibility of killing someone, but, he continued without let up or hinderance.

The State opened its case by leading evidence from Stephen Sikhosana.

His evidence was that he arrived at Plaxedes Ndlovu's homestead at about 1600 hours on the 12^th of May 2002 as there was some traditional beer. At about 8pm, he observed the accused, who appeared drunk, and was going about drinking other people's beer, which conduct he disapproved, and advised him to stop. He then observed the accused going behind a hut, and, when he came back he was topless. When he came back, the accused removed an Okapi knife from his trouser pocket, and was holding it in his hand. He and Gillian Dube tried to disarm him but they failed. He then observed him jump over the fire, and he fell on the people who were sitting on the wheelbarrow. It is at that stage that he stabbed Abel Ncube (the now deceased) once under the armpit, and went further to stab John Moyo on the neck.

He then ran away.

At that stage, he also stabbed Plaxedes Ndlovu.

These assaults were without provocation. The accused was subsequently arrested.

The accused gave evidence.

His evidence, in relation to Count One, is that on the 12^th of May 2002, he was at Plaxedes Ndlovu's homestead where there was a beer party. He drank both opaque beer and tototo (an illicit brew).

There was Andrew Siziba, who owed him money, whom he asked about the debt. The issue was, however, resolved amicably. Stephen Sikhosana and Gillan Ndlovu interfered in this discussion. This was about 7pm.

He had been drinking but was sober.

Stephen Sikhosana and Gillan Ndlovu started attacking him. He tried to escape, but could not do so as the gate nearer to him was closed. He ended up jumping the fire as people were chasing him.

Asked by his defense counsel whether he had an altercation with the deceased, he avoided answering that question as he merely said that there were people who were chasing after him, and that he could not find his way out of the yard. He, however, went through a small gate, and only heard later, by villagers who came to alert him, that he had stabbed people.

The appellant was arraigned before the High Court sitting at Gweru circuit on 3 November 2004 charged with murder. He was found guilty of murder with actual intent. No extenuating circumstances were found, and, consequently, the court a quo sentenced the appellant to death.

The appeal is against both conviction and sentence. After hearing argument by both parties we reserved judgment.  

Herewith is the judgment.

The offence arose in Mashambanhaka Village in Uzumba Maramba Pfungwe.

The brief facts, as summarized in the outline of the State case are that the deceased was one of the accused's two wives in a polygamous setting. On 4 July 2009 the deceased and the accused quarrelled, wherein the accused made accusations of infidelity against the deceased. The accused lost his temper, armed himself with an axe and tied up the deceased's hands and legs. He then axed the deceased indiscriminately all over the body. The deceased died shortly thereafter.

On the fateful day, the accused had purchased the prescribed medicine in Murehwa. After supper, he went to the deceased's bedroom where he intended to give her the medication. That is when the deceased told him she was not ill and was on a Depo-Provera injection. She also told him that the issue of him having bewitched her was a ploy by her and her parents to extract compensation from him. As he sought further explanation from the deceased he addressed her by their daughter's name Varaidzo. That is when the deceased told him that the child was not his daughter. She further told him that is why she preferred to call the daughter Ethel. At this stage, the accused says he lost his temper. He first took a one metre long stick with which they used to secure the door from inside and started to beat the deceased. He said he just beat the deceased randomly as he was angry. The next thing was that he saw the deceased with an axe with which she attempted to strike him. He then grabbed the axe and they struggled. The next thing he saw the deceased had been injured. He does not recall how the deceased was injured as he blacked out momentarily because of extreme anger.

After noting the injuries, he took a rope and tied the deceased's hands and wound the rope around her body. He did this because the hands were badly injured as the bones were sticking out. He then told the deceased that he was going to her parent's home where he would kill himself. Having retrieved some rat poison from his bedroom he first proceeded to his brother's home where he did not find him.

Under cross-examination, he said the aim was to get a cart and oxen with which to convey the deceased to hospital. However, this contradicts the earlier decision to go and commit suicide at the deceased's parents' home. In any event, he managed to find transport and went to his in-laws' home in Chitsungo, some fifty kilometres away, where he attempted to take his life. It appears his in-laws were not moved by his threats to commit suicide as they let him attempt to take his life in their presence. He asked for water and ingested the poison but was later taken to hospital.

The accused's evidence was framed along the lines of the defence outline. However, there were other material additions to his defence in the form of the background to this tragedy. He stated that having entertained doubts about the deceased's fidelity he had taken his case before the local court. As we understand it, the accused wanted the public to hear about his accusations against the deceased. He then divorced the deceased. The deceased took her belongings and went to her parents' home. The accused was later summoned to the local court where his in-laws reside and his father-in law levelled charges of having cast a spell on the deceased. The divorce was reversed. He was ordered to seek treatment for the deceased. This meant that the deceased would only be accepted back by her parents after she had been healed. A Chief's aide was to accompany the accused and the deceased wherever they sought treatment. He consulted a faith healer who diagnosed that the deceased had been bewitched by those who were jealous of her marriage. Although the healer removed some spells the deceased was not healed.

He also explained the incident of the cigarettes. He had found the deceased with two packets of Madison cigarettes. Her explanation was that she had done some work for the accused's nephew at his shop. When he failed to pay she then snatched the cigarettes from him. The accused was not satisfied with the explanation. The issue was discussed and settled within the family.

Following their divorce the deceased had been staying at his home for a month. They had previously consulted a medical doctor who detected no abnormality with the deceased, but, nonetheless, prescribed some medication.

Counsel for the State initially submitted that this was a premeditated act and thus the accused should be found guilty of murder with actual intent. However, counsel for the State, having, at some stage, submitted that the attack by the accused was indiscriminate and reckless in the circumstances, relented and urged the court to return a verdict of guilty of murder with constructive intent. Regarding what is required to prove constructive intent, counsel for the State cited the case of S v Tazwinga 1968 RLR 121.

On other hand, counsel for the accused submitted that the evidence led must show, beyond a reasonable doubt, that the accused had the requisite intent to commit the offence.

It is…, clear that the accused was not in any danger when he struck the deceased with an axe. The nature of the weapon used can only mean that the accused had some intent to murder the deceased notwithstanding the provocation. The nature of the attack on the deceased, in light of the injuries sustained, can only mean that the accused must have lost control of himself but not the intention to kill.  However, in our view, the accused did not mean to kill the deceased in the sense of desiring to bring about her death. This is because of the nature of the attack itself which was indiscriminate. It can only have been perpetrated by someone who was enraged. We do not accept that he had lost self-control as not to appreciate what he was doing. He must have realized that there was a real risk or possibility that his conduct might cause death but continued to engage in that conduct despite the risk or possibility.

Maud Date, the accused's first wife, testified to hearing the altercation and later hearing the deceased crying out that the accused was axing her. She then rushed to alert a brother-in law as well as the Village Head. She did not find the brother-in-law but the Headman told her they would attend. When she went back she found the deceased seated on the floor with injuries to her hands and legs. There was a lot of blood. A rope was close by on the floor. The deceased asked for water which she availed. Having noted that there was a delay by the Headman she went back to seek further help.

The other witnesses to testify for the State were Zvinairo Mafusire, who is the accused's younger brother, Assistant Inspector Dvetero, the Investigating Officer, as well as Kerina Kanenungo, who is an in-law of the accused.

The accused, a male adult age 31 years old, was charged with murdering a female adult aged 65 years at the time she met her death. It was alleged that on the 29^th day of May 2012 and at Village Baye, Chief Mazvihwa, Zvishavane, the said accused person did unlawfully and with intent to kill, strike Perlagia Makiwa with a metal bar on the forehead thereby causing injuries which resulted in death. 

The accused pleaded not guilty to the charge of murder but tendered a limited plea of guilty to culpable homicide. The State did not accept the limited plea, I entered a plea of not guilty and proceeded to trial.

The State Outline was read and produced as exhibit 1 and I do not intend to repeat its contents. The accused tendered into evidence a Defence Outline, exhibit 2. In his lengthy Defence Outline, the accused states that he had gone to the deceased's homestead around 11pm intending to collect his child. The deceased was his mother-in-law, but he was no longer living with the deceased's daughter with whom they had one daughter, Claris. On the fateful day, the accused states that the deceased had attacked him with bricks and a metal rod. The accused says he got angry, dispossessed the deceased of the metal rod and threw it in the general direction of the deceased - without actually aiming at her head. The accused person realized that the deceased had fallen down and then said “muchembere ndinokukuvadza”, in the venecular, which means “old lady I can cause you some injuries.”

The accused says that he later ran away from the scene after his ex-wife, Patience Makiwa, had advanced towards him intending to attack him. The accused states that he had no intention of killing the deceased or cause her death…,.

The State then led viva voce evidence from Patience Makiwa.

She stated that she resides at Village Baye, Chief Mazvihwa, Zvishavane. The accused is her former husband and the deceased was her mother. It was her evidence that on the 29^th day of May, 2012 she was asleep at her homestead. At around 2300 hours she was awoken by someone who pulled her hair. She asked who the person was. The accused person responded that it was him and he had come to collect their two year old daughter, Claris Moyo. The witness indicated that this was not possible since the child was too young, besides, it was too late in the night. The witness tried to persuade the accused to leave the homestead as the deceased would wake up and discover that he was in her room. The two argued for over 20 minutes before the witness decided to leave the room where she was sleeping to wake up the deceased who was sleeping in another house. When the deceased woke up she told the accused to go and come the following day since it was too late in the night, besides, she would have to inform other members of the family about the accused's request. The accused left the homestead. The witness said she then went back to sleep. A little later, however, she was again awoken by a noise outside. She says that she heard a voice saying:-

“Muchembere ndinokukuvadza”, which means “old lady I can cause you some injuries.”

She went outside to investigate. She was horrified to find the deceased lying down in a pool of blood. She observed that the deceased was bleeding profusely and there was a deep wound on her forehead and she could not talk. While assessing the deceased's condition, the accused struck her with a brick before running away and disappearing into the night. The witness observed a metal pipe close to where the deceased was lying. The witness then called Fungai Makiwa for assistance and they ferried the deceased to the local clinic. On the 30^th May 2012 at around 0330 hours the deceased was carried by an ambulance to Zvishavane District Hospital where she was further transferred to United Bulawayo Hospitals. The witness learnt about the death of the deceased on the 31^st May, 2012. The police later came to her homestead and she made indications to the police.

Patience Makiwa denied that the accused had come to her homestead on the night of the 29^th May, 2012 by her invitation. She also refuted the accused's assertions that she had initially agreed to allow the accused to come at night to collect the minor child only to change her mind at the last minute. This witness remained steadfast under intensive cross-examination by the defence.  She impressed us as an honest and straightforward witness. Her evidence was not tainted with bias or malice as she readily agreed that the accused had consumed alcohol that day. She, however, said that the accused was not drunk to the extent of not appreciating what he was doing. She said she had lived with the accused for one year and she was able to comment on his drinking habits. She said that when the accused got drunk he quickly fell asleep and the fact that he came to their homestead and tried to take the daughter in the manner he did shows that he was not affected by alcohol to a degree where he did not know what he was doing. The witness also conceded that she did not witness the assault on the deceased. She denied that her 65 year old mother could have fought a young person such as the accused…,.

The accused was called to testify.

In brief, his testimony was that he met Patience Makiwa earlier in the day on the 29th May, 2012. He says they struck an agreement wherein the accused would sneak into Patience Makiwa's bedroom late that night and they would leave together with their two year old daughter, Claris Moyo, en-route to Nyazura to the accused person's mother. The accused says that it was Patience Makiwa who invited him to come around 2200 hours when the deceased would be asleep. The accused says that prior to visiting Patience Makiwa's homestead he had consumed intoxicating liquor in the form of at least six (6) litres of opaque beer. He had also smoked dagga in the afternoon. At around 2300 hours, the accused proceeded to Patience Makiwa's homestead. Upon arrival, he went straight to Patience Makiwa's bedroom and he found the door unlocked and he entered her bedroom. While inside the bedroom he woke up Patience Makiwa by shaking her head and advised her that he had come to collect her and Claris in accordance with their earlier arrangement. To his surprise, the accused says that Patience Makiwa changed her mind indicating that it was no longer possible for her to leave with the child. She indicated that it was improper for the deceased to wake up in the morning to find them gone. There was an argument between the two. Patience Makiwa went outside the bedroom and proceeded to the deceased's bedroom whilst the accused waited in the verandah. The deceased came out and advised the accused person to come in the morning to discuss the issue with other relatives.

The accused left the homestead and stopped about fifty metres from the homestead for a period of approximately 15 minutes. He sat down. In his evidence, the accused says that during that time he was thinking about his daughter, about his work, and the fact that he wanted to collect his daughter and Patience Makiwa was refusing to let him take the child. The accused says at that stage what come into his mind was the idea that he should return to Patience Makiwa's homestead and persuade her to allow him to take custody of the child. The accused went back to the homestead and upon arrival, he was met with a dog which started barking at him and this barking woke up the deceased. The deceased came out of her bedroom holding a torch and a metal pipe. The accused says that the deceased flashed the torch at him, and started shouting at the accused person indicating that he was troubling her and being contemptuous of her and not respecting her, at the same time she was advancing towards him. The accused says the deceased started assaulting him on the shoulders with the metal pipe. The accused says that he overpowered the deceased and took away the metal pipe from the deceased. After he forcibly took the metal pipe, the deceased lost her balance and retreated for a distance of about 3-4 metres. At that stage, accused says the deceased picked some bricks and started throwing them at the accused and he ducked behind a scotch-cart. The accused testified that he got angry and threw the metal pipe in the general direction of the deceased, “in order to scare her away.” The accused says he realised that the deceased person had fallen down and then said in venecular;

“muchembere ndinokukuvadzai”, meaning to say “old woman I can cause you some injuries.”

The accused did not ascertain whether the deceased had sustained injuries because he says Patience Makiwa had started throwing bricks at him. Patience Makiwa was shouting that the accused had injured her mother, and the accused says he then ran away from the homestead….,.

We conclude that when the accused hurled the metal pipe in the general direction of the deceased, a 65 year old lady, at night, he must have realized that he could injure and kill the deceased. He struck the deceased and thereafter announced that:-

“muchembere ndinokukuvadzai”, meaning to say, “old lady I can cause you some injuries.”

This statement was uttered by the accused when he observed that the deceased had fallen to the ground. In his confirmed warned and cautioned statement, recorded soon after the incident, the accused said:

“…, she (deceased) threw a brick at me while she was holding an iron bar. This angered me and I hit her with the same iron bar…,.”…,.

The injuries sustained by the deceased, as reflected in the post mortem report, exhibit 4, show that the deceased suffered brain damage; had a depressed skull fracture; the injury was inflicted by a blunt object. The nature of the injuries are consistent with the accused's version of events as narrated in the warned and cautioned statement. The accused must have struck the deceased with the metal pipe with a high degree of force on the head. He did not throw the pipe but struck her realizing that this may cause severe injuries leading to her death. He intended to cause her serious harm and acted recklessly. The court notes here that the metal pipe is a heavy object weighing close to a kilogram. The suggestion by the accused person that he wanted to scare away the deceased cannot be believed and is obviously an attempt to mislead the court. We reject the accused's defence without any hesitation.

The accused is facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 18^th May 2013, and at Gretina Green Mine, Lower Gweru in the Midlands Province, the accused unlawfully caused the death of Chrispen Makuvire by stabbing him with a knife once in the chest, intending to kill him, or realizing that there was a real risk or possibility that his conduct may cause death, and continued to engage in that conduct despite the risk or possibility.

The accused pleaded not guilty to murder. The accused raised self defence as his defence and produced Exhibit 2 as his Defence Outline.

In an endeavour to prove its case, the State produced Exhibit 7 which is the summary of evidence, Exhibit 3 which is the accused's confirmed warned and cautioned statement, Exhibit 4 which is the post mortem report and Exhibit 5, the Okapi knife which is the weapon used to murder the deceased. evidence of the 3^rd, 4^th, 5^th and 6^th witnesses into evidence in terms of section 314 of the Criminal Procedure and Evidence Act…,. The defence consented to the production of this evidence. The evidence of those witnesses was then formally admitted.

The State then called its first witness, one Sidhube Muchochomi, a Mine Manager at Gretina Green Mine, Range Farm 2, Lower Gweru.

He knows the accused as an ex-employee of the mine. The deceased was his workmate. On 18^th May 2013, at approximately 8pm, the accused arrived at his workplace looking for beer to buy. The witness told the accused that they had closed, and, in any case, beer had been sold out. The accused went away but returned shortly thereafter whereupon the witness asked the accused why he had returned. The accused did not proffer any explanation or response. At that moment, the deceased arrived and asked the accused why he was still there when he had been told to go away. Before the deceased finished or was answered, he was stabbed in the chest with a knife by the accused. The witness said the accused used his left hand to stab the deceased on his left hand side. The witness said he was standing about ½ a meter away and the visibility was good as the place was illuminated. He further went on to say the accused, who was wearing a jacket, had both hands in his jacket pockets and at the time he stabbed the deceased, he suddenly pulled out his hand from the pocket, delivered the fatal blow in a flash and ran away from the scene. The witness said he failed to give chase. At that time, he noticed two men running abreast the accused. These men were taller than the accused. He noticed the trio running into a bush near the compound and he gave up the chase. He returned to where the deceased was and noticed that the deceased was in a stooping position clutching his chest. The deceased uttered the following words and I quote; “Uncle, I am now dead;” end of quote. The witness informed the mine owner and later secured a vehicle to ferry the deceased to hospital. 

He was subsequently advised that the deceased had died.

The witness denied that he called the accused a thief who was persona non grata at the farm. Further, the witness denied assaulting the accused or witnessing the accused being assaulted by anyone. The witness denied that it is the deceased who produced a knife and stabbed the accused first. He insisted that the knife came from the accused's pocket. He agreed that the deceased was his nephew who had worked at the mine since February 2013. According to him, the whole event happened “swiftly” depriving him of an opportunity to either warn or prevent the deceased from being stabbed. The witness went on to tell the court that the deceased was physically bigger than the accused and that the deceased had taken some alcohol during the day. He said the accused leapt towards the deceased and stabbed him. As regards the accused's state of sobriety on that night, the witness said the accused was “drunk as he was unable to walk.” Finally, he said the accused's refusal to leave the mine made him to suspect that the accused was loitering with some intent to commit some unknown crime….,.

The State then called its second witness, one Portia Zvidzai, a former employee of Gretina Mine.

She started working at the mine in January 2013 and left in June 2013. She testified that on 18 May 2013 she was at the mine tuck shop where she had gone to buy air time at approximately 8pm. The witness said that the accused arrived in the company of two other men. Upon arrival, the accused pushed her with his chest at the same time asking her whether the tuck shop had been closed. She told him that the tuck shop had indeed been closed. The accused did not believe this witness because, instead of going away, he went straight to the tuck shop door where the first witness was standing. The accused indicated that he wanted to buy beer and was told that there was no beer left and that the shop was closed anyway. The accused then went and stood in a shed in the “shadow”. This was at a different spot from where the other two men were seated. The accused stood against a wall with his hands in his jacket pockets. The first witness came out of his house, and upon seeing the accused, who had moved to a spot that was lit ,said ,and I quote; “Man are you still here;” end of quote.The accused did not answer, instead he returned to the dark portion of the shed. At this point, the deceased arrived to collect his cellphone from the first witness. The first witness entered his house to collect the cellphone. Upon his return, the accused again moved out of the shadow and the first witness asked the accused why he was still on the premises despite his earlier explanation. The deceased then said, and I quote; “Man if it's closed it means it's closed;” end of quote. The accused remained standing there while the deceased and the first witness were conversing and laughing. Shortly thereafter, she saw the accused “jumping towards deceased and his hand touched deceased's chest.” Next, she saw the deceased touching his chest where he had been 'touched”. The deceased bent down and said, I quote; “Gentlemen, I am now dead these people have killed me.” When the deceased removed his hand from his chest she saw blood “gushing” out upwards. The accused and his two companions then fled and the first witness then made arrangements for the deceased to be ferried to hospital. The witness said she was standing approximately 10 metres from the scene and could see and hear clearly.

When it was put to her that (the first witness) assaulted the accused she said nothing about that happened. She also denied that the deceased is the one who pulled a knife intending to stab the accused with it. Asked where the knife came from, she said it came from the accused's pockets since he had his hands in his pockets. The witness denied knowing the accused prior to this day. She also told the court that she does not have any reason to falsely implicate the accused. Like the first witness, she thought the accused and his companions were thieves.

Under cross-examination, she stuck to her story. When it was put to her that there was nothing peculiar in the accused wearing a jacket with a hood and placing his hands in his pockets, the witness' answer was (I quote); “The unusual thing is he went to a shed where there was a shadow twice – why not go to where his colleagues were.” End of quote. She told the court that she was not related to both Sidhube Muchochomi and the deceased….,.

This witness is what can be terms an independent witness in that she has no conceivable interest in the matter apart from telling the truth. She gave her evidence confidently and truthfully. Her evidence flows naturally. Even under cross examination. She did not pause to think about her answers. Her answers would just come out naturally and spontaneously. The witness' demeanour was good and her evidence is corroborated on material respects by that of the accused himself and Sidhube Muchochomi (the first witness). She did not exaggerate her testimony, for example, she could have said she saw the accused producing a knife from his pocket instead, she said she only inferred that the accused had the knife in his pocket. For these reasons we accept her evidence in toto.

The State closed its case and the accused gave evidence in his defence.

The accused's version is basically that on the day in question, he went to Gretina Mina to buy beer from the first witness. He agreed that he was advised that there was no more beer. He said the first witness told him that he (the first witness) did not want to see the accused at the mine since he was a thief. The first witness started assaulting him with open hands on his cheeks. He said as he was trying to run away “Chrispen” got hold of him by his “trousers” around the waist and the first witness continued to assault him with open hands accusing him of being a thief.

According to the accused, “Chrispen” then stabbed him with a knife on the wrist and he got hold of “both hands” and “disposed him of the knife” then stabbed him with the same knife. That is when they let go of the accused and he ran away. The following morning he threw the knife into a thicket on his way home. He was arrested that morning and he showed the police the knife. On the day, he said he had been drinking beer at a tuck shop at a place called Shamrock. The accused denied being drunk that night but said he had smoked dagga and felt an urge for more alcohol. He denied seeing Portia Zvidzai at the tuck shop but saw her husband.

The accused's version is highly improbable and incredible.

This is so because the accused himself did not perform well as a witness. He contradicted himself on a number of occasions. For example, in the warned and cautioned statement he said his hand was cut in the process of disarming the deceased of the knife, yet in the Defence Outline he said the deceased stabbed him with a knife before he took it. Secondly, in the Defence Outline, he admitted being in the company of two male “friends”, a fact he vigorously denied in his evidence in chief. Thirdly, in the Defence Outline, it is not denied that Portia Zvidzai was present at the scene and witnessed the incident, yet in his evidence in chief he strenuously denied that Portia Zvidzai was there. Fourthly, as regards his state of sobriety he initially said he was not drunk although he had taken alcohol in the afternoon; later, under cross examination, he changed and said he was drunk and this made it difficult for him to escape.

Apart from this prevarication, the accused failed to answer questions promptly and meaningfully. He would take time to answer, and, in some instances, he would avoid the question despite it being repeated several times. It became clear to us that the accused was bent on fabricating his evidence in a bid to exonerate himself from those portions he felt were incriminating. For example, while the accused admitted that he had a jacket, he continuously said this jacket had one pocket which was on the left side. When he said this, he was trying to mislead the court for he knew that the witnesses had said the knife came from the right hand side pocket. Also, despite the fact that both witnesses said they saw two men with the accused and that these two (2) ran away with the accused, the accused denied this fact. The reason he denied this is that he realized he rather belatedly that it would not make sense that his friends would stand and watch while he was being assaulted. By saying he was alone he was hoping to portray himself as a victim of the assault by the first witness and the deceased.

The accused's explanation of how he disarmed the deceased is improbable in that initially he admits that he was being assaulted by the first witness before the deceased arrived at the scene. One wonders why, if this is what happened, the accused failed to run away. On his own admission, he was not being held but he was being “pushed”. Further, in view of the fact that the deceased and the first witness were stronger than the accused it is unlikely that the accused would be able to twist the deceased's arm, take the knife and stab him while the first witness was just watching. Also, according to the accused's explanation, namely, that the deceased was behind him holding him by the belt, it would not have been possible for the accused to stab the deceased on the chest simply because the deceased was taller, and, from accused's indications, he swung the knife with his hand at his waist level therefore the blow should have landed either in the deceased's groin or/over abdomen.

From the above, we find that the central issue is whether or not the accused was acting in self defence when he stabbed the deceased. 

We make, from the totality of the evidence, the following findings:

(i) That the accused went to Gretina Mine in the company of two men;

(ii) That upon being told that there was no beer and that the shop had been closed the accused did not go away;

(iii) That the accused was armed with an Okapi knife, Exhibit number 5;

(iv) That at no stage before the stabbing was the accused assaulted by anyone;

(v) That the deceased died from the stab wound;

(vi) That although the accused had consumed alcohol, he was not so drunk as not to appreciate what he was doing….,.

In casu, the accused does not deny the actus reus; that is, the physical element of stabbing the deceased. He also admits using the knife. 

As a result, the only issue is whether the accused committed the crime with the requisite intention.

Both the State and the defence counsels submitted that the accused be found guilty of murder with constructive intent. The defence counsel submitted that although the accused was acting in self-defence, he nevertheless, the means he used, exceeded the bounds of reasonable self defence.

We do not agree with counsel that this defence fails for this reason.

The real reason is that from our factual findings, there was no unlawful attack on the accused. For this reason, the rest of the requirement for this defence fall away. We, however, agree with the defence counsel's submissions that the accused was reckless and that at that time he had consumed some alcohol.

Counsel for the State submitted that the accused be convicted of murder with constructive intent. He relied on the following cases;

(i) Mugwanda v S SC19-02.

(ii) Tichaona Mudzana v S SC76-04.

(iii) Witness Siluli v S SC146-04.

The common thread running through these cases is the principle that;

 “'the expression intention to kill' does not, in law, necessarily require that the accused should have applied his mind to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis as distinct from dolus directus.”

In casu, we agree with counsel that the proper verdict is one of guilty of murder with constructive intent. We say so for the following reasons:

(a) Accused plunged a knife into the deceased's chest without any provocation at all.

(b) The accused did so recklessly.

(c) The accused delivered only blow and fled from the scene.

(d) The accused stabbed the deceased on the upper part of his body i.e causing an injury on the deceased's heart.

(e) The medical evidence shows that it was a deep stab wound.

(f) The accused subjectively foresaw the possibility of his act causing death.

(g) The accused had consumed some alcohol but this did not prevent him from knowing what he was doing in approaching Sidhube Muchochomi, asked if he could purchase some beer, producing a knife which we find to have already been opened, stabbing the deceased with severe force, and fleeing into the bush.

CONVICTION ON COUNT ONE

The submission was initially made, but subsequently abandoned, on behalf of the appellants that the State had not proved beyond reasonable doubt that the appellants were aware that that pills given to the deceased were lethal and that they only intended to make them drowsy to facilitate theft of their property. 

Since no toxicology report was produced by the State to prove the lethal effect of the pills, so the argument goes, it is possible that the appellants merely negligently but unwittingly overdosed the deceased, causing the pills to go beyond just making them drowsy. Thus, the appellants would have been negligent in administering an unknown substance without bothering to ascertain the effect or correct dosage and would have been guilty of culpable homicide rather than murder with constructive intent.

As has been pointed out already, this submission is not sustainable in the light of the evidence and was rightly abandoned.

The appellants could not have intended to merely to drug the deceased without killing them because the first deceased, Michael Sunderland, knew the first appellant very well and would have been able to identify him upon recovering leading to the arrest of the duo. Further, when the second deceased showed signs of recovery, even through still too weak to offer any resistance to the theft, the appellants promptly hacked him down with a pick in order to silence him forever. It is also true that when the accused realised that the substance was killing their victims instead of making them just drowsy they did not abandon their enterprise and render assistance to the stricken but persisted with the robbery.

It was a tragic end to the deceased's life. She was barely 23 years at the time of her death. The accused stands charged with the crime of the deceased's murder to which he has offered a plea of innocence. 

The material facts constituting this matter which are common cause are as follows:

The accused and the deceased were a young couple with one minor child aged three years at the time. Their relationship was on the rocks, and, for some time, they had experienced what could colloquially be referred as an “on and off” relationship. Their matrimonial discord had spilled over to the deceased's family and from the look of it they appear to have failed to successfully assist the two. This then led the deceased to take refuge at her sister's place. On the 10^th of September 2015, the accused walked the deceased from the flea market where the deceased was working to her sister's place of residence. Incidentally, the deceased's sister had left for Harare on a private visit. There, the deceased was seen doing laundry whilst the accused was helping himself to two two-litres of opaque beer whilst their little boy was playing close by.

This was around 18:00 hours.

The next thing of significance was that the deceased was heard by neighbours screaming for assistance. Three neighbours rushed to the place in response to this distress call. After struggling to push open the kitchen door, from where the distress call was emanating from, three State witnesses found the accused busy assaulting the deceased who was down and screaming in agony. No sooner had the witnesses rescued the deceased and held the accused, to restrain him from further punishing the deceased, did the deceased draw the attention of the witnesses to the murder weapon, a kitchen knife, that was sunk deep in her back close to her shoulder pleading with the witnesses to pull it out. The deceased's clothes were found to be soaked in blood. Like typical good Samaritans, the three witnesses quickly arranged for the deceased to be conveyed to Hwange Hospital for treatment whilst seeking police assistance to unravel the cause of this tragic assault. As fate would have it, the deceased died on the same evening on admission at Hwange Hospital.

Whilst the State alleged that the accused had deliberately and intentionally assaulted the deceased to death, the accused pleaded innocence and said it was the deceased who had conducted herself in an aggressive manner and armed herself with the murder weapon after the two had picked up a quarrel over a love message that had appeared on the deceased's cellphone.

The evidence surrounding the origins of the dispute is privy to the accused only and the court will give the benefit to the accused. The accused person went further to raise the defence of self defence.

In terms of our codified law, as informed by section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) thereof, this defence can be a complete defence leading to the acquittal of the accused if successfully pleaded and its requirements can be summarised as follows:

(i) There must have been an unlawful attack on the accused person;

(ii) The attack must have either commenced or perceived to be imminent by the accused;

(iii) In response thereto, the action taken by the accused must have been necessary to avert the attack; and

(iv) The means used to avert that attack must have been reasonable given the circumstances of the case.

See also A Guide to the Criminal Law of Zimbabwe by G. FELTOE second edition, published by Legal Resource Centre in 1997…,.

In order to ascertain whether or not the defence of self-defence is sustainable, the court is enjoined “to take due account of the circumstances in which the accused found himself/herself including any knowledge or capability he or she may have had and any stress or fear that may have been operating in all the circumstances.” See section 253(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is with this in mind that we must now proceed to analyse the evidence that was presented in this court by both the State and the defence.

The State case was built around the evidence of Weston Chemhere, Moses Sanudi, Sarah Phiri, Rachel Luphahla, Dumisani Mwindi and Doctor Roberto Trecu. The defence case was limited to the viva voce evidence by the accused person.

The evidence of Sarah Phiri, Dumisani Mwindi and Doctor Roberto Trecu was admitted into the court record, as recorded in the State summary, in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] and so was the murder weapon, exhibit 3. The evidence of Weston Chemhere, Moses Sanudi and Rachel Luphahla was given in court and was tested through cross-examination.

The evidence of the two State witnesses, Weston Chemhere and Moses Sanudi, was particularly critical in this case because it placed this court at the scene of the crime. Both witnesses testified that when they responded to the distress call by the deceased they had to force open the door and that they were shocked with what they saw. The two saw the accused viciously assaulting his wife, the deceased, who was down and helpless. They were further shocked to discover, upon indication by the deceased, that the murder weapon was still sunk in her body and that she was bleeding profusely as evidenced by her clothes which were soaked in blood.

It is clear that the accused could not possibly have been assaulting the hapless deceased in self-defence in those circumstances.

It is not accidental that the accused did not disclose to the three rescuers of the deceased that it was him who was under threat. A person under threat or attack does not continue to attack an overpowered woman who is down and helpless. The action of the accused, as observed by the three witnesses, speaks volumes to his aggression towards the deceased. Even if one were to assume the deceased was initially the aggressor, what is clear is that the accused clearly exceeded the bounds of self defence.

The accused's explanation that he was assaulting the deceased because she was biting his feet does not add up given the state of the deceased as observed by the three State witnesses. It is not usual that credibility of State witnesses is confirmed by an accused person. This is one such rare case. We accept the version of the State witnesses as having projected nothing else but the truth. A further leaf to their credibility is the witnesses' unwillingness to be drawn to comment on what may have started the fight. They simply pleaded ignorance of that….,.

Having accepted the evidence of the State witnesses as representing the truth in this matter, the court must now proceed to consider the appropriate verdict.

The prosecution initially pushed for the verdict of murder with actual intent and we expressed our reservations for that verdict. Our reservations stemmed from the fact that, as a court, we remain clueless as to how the assault of the deceased started. Our view is that it is possible the deceased may have been the initial aggressor as suggested by the accused. We are not able to completely reject that position in its entirety.

Having given the accused the benefit of doubt on this point, we accept that whatever happened, initially, there is overwhelming evidence that the accused went over-bounds in defending himself and in doing so we find comfort in leaning on the evidence of the two State witnesses who testified.

We are also of the view that if indeed the accused had the actual intent to kill the deceased, there was nothing to stop him from pulling the knife and continue to stab her as she lay down helpless and screaming. Our reading of the evidence is that by stabbing the deceased on various parts of her body, and continuing to assault her knowing fully well that she had the murder weapon in her body, the accused must have subjectively foresaw the real possibility that he would fatally injure the deceased and he was reckless as to whether or not that occurred.

The proper verdict must therefore be murder with constructive intent. Consequently, the accused is found guilty of having committed the crime of murder with constructive intent.

This, unfortunately, is yet another senseless and cruel crime of selfish passion that this court has to deal with.

The accused was charged with murder in that on the 26^th day of December 2013, and at House Number 6821 Nketa 9, Bulawayo the accused did wrongfully, unlawfully and intentionally kill and murder Simbarashe Denhere a male adult. The State alleges that on the fateful night the accused stabbed the deceased once on the left side of the chest using a kitchen knife. It is common cause that the accused and the deceased had been living as husband and wife for six (6) years prior to the commission of the crime. The accused and the deceased were in a tumultuous relationship characterised by frequent fights over accusations and counter-accusations of suspected infidelity. The deceased and the accused were on a drinking spree on the fateful day. They returned home in the wee hours of the 26^th of December drunk. Once in the bedroom, they started quarrelling and the quarrel degenerated into a fight. A co-tenant, Munyaradzi Gwezuva, was alarmed by the noise and entered the bedroom. He managed to break up the fight by positioning himself in between the protagonists. At that stage, the accused picked up a kitchen knife and fatally stabbed the deceased in the chest. The deceased died on his way to hospital and the accused was arrested.

The accused pleaded not guilty.

In her amended Defence Outline, which was produced as exhibit 2, she stated that she would plead not guilty to murder but guilty to culpable homicide. While admitting that she stabbed the deceased, as alleged by the State, she contended that she did not intend to kill the deceased since she was acting in self defence. Further, she stated that she was unable to fully comprehend her actions due to the excessive intake of alcohol on the day in question and had been subjected to consistent physical and verbal abuse by the deceased prior to the altercation on the day in question. Finally, it was contended that the accused acted out of a combination of anger, provocation and drunkenness in stabbing the deceased.

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

The State counsel then produced the following exhibits. Exhibit 1, which is the summary of the State case, sets out the facts. It was read into the record and I do not wish to reproduce it. I have already referred to the second exhibit which is the Defence Outline. The third exhibit is the accused's confirmed warned and cautioned statement in which she claimed to have stabbed the deceased in self-defence after he persistently attacked her unlawfully with a fan. She said when she picked up the knife she thought it was a “cooking stick.”

Exhibit 4 was an affidavit by Edson Chikunguru, signed in terms of section 260(4) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The constable identified the body of the deceased to Dr S. Pesanayi in the mortuary at United Bulawayo Hospitals.

Dr Sanganai Pesanayi compiled exhibit 5 which is a post mortem report. In that report, he concluded that the cause of death was:-

(i) Haemorrhage shock.

(ii) Stab wound aorta.

(iii) Homicide.

He also observed that there was +/- 80mls of blood in the heart. There was bilateral haemothorax i.e. 900mls on the right lung and 1500mls in the left lung. His other remarks are that the “postmortem is consistent with bleeding to death due to stab wound with a sharp object. Knife went through the second left intercoastal space cutting through the cartilage.”

The knife was also produced by consent as exhibit 6. It is a very sharp steak knife with the following dimensions:

(i) Weight – 0.35kg.

(ii) Total length – 22cm.

(iii) Length of blade – 11.5cm.

(iv) Length of handle – 10.5cm.

This knife has a teppering sharp tip or end.

Munyaradzi Gwezuva was the State's first witness. He resides at House Number 6821 Nketa 9 suburb in Bulawayo. Both the accused and the deceased were also tenants at that house. He had known both as husband and wife for three (3) years prior to this incident. On the 25^th of December 2013, he was informed by both the accused and deceased that they were leaving for Harare on a private visit. Later, he was informed that they had abandoned their trip as the car could not be repaired. The deceased then told him to buy some beer which he did.

When the witness phoned the two in the evening, he spoke to the accused who said they were coming home. They later arrived at around 0300 hours and they drank beer for approximately an hour before the deceased started dozing off and the accused took him into their bedroom. The witness and one Farai Moyo remained in the dining room drinking beer. The witness later entered his bedroom but before he fell asleep he heard the sound of something falling down in the accused and deceased's bedroom. He peeped and heard the accused saying to the deceased: “you are disrespecting me.” He decided to find out what was happening inside. When he entered the room, he found the two fighting and he immediately got between them at the same time asking what they were fighting over. The deceased told the witness to ask the accused as he had done nothing wrong. The deceased said the accused was insane and they advanced towards one another in order to resume the fight. The witness blocked the accused's way but in the process lost balance due to intoxication and the accused and the witness fell down. The accused tried to extricate herself from the witness' grip but the witness pinned her down resulting in the accused biting the witness on the neck. The witness released her. When he got up he enquired from the deceased why they were fighting. There was no reply and when he turned to face the accused he saw something “glittering” in the accused's hand. He unsuccessfully tried to disarm her. The accused, who was in front of the witness, reached over him and stabbed the deceased who was behind the witness. After being stabbed, the deceased cried out “Makhabo you have injured me” holding his chest. The deceased fell down near the bed and other tenants came in. The witness phoned for an ambulance and the police, while the accused carried the deceased on her back towards Nketa 6 garage. On the way, the witness also carried the deceased on his back but realized at some stage that the deceased was no longer breathing and he placed him on the ground. The police and ambulance crew arrived and they announced that the deceased had died.

Under cross-examination, the witness said he did not see where the accused took the knife from. As regards the relations between the accused and the deceased, he said they were in the habit of quarreling and fighting over the deceased's alleged infidelity. The accused used to allege that the deceased had many girlfriends. On the night in question, both the accused and the deceased were “moderately” drunk. According to him, the pair would fight at least once every month during the 3-year period he stayed with them. When asked how the accused was able to stab the deceased while he was in between the two of them, he said the deceased was taller than him while the accused is shorter that him. This, according to the witness, made it possible for the accused to jump and deliver the fatal blow. The witness did not see the deceased assault the accused with a fan, although he agreed that he saw a broken fan on the floor when he entered the room. Finally, he told the court that he was cut on the wrist by the accused as he tried to disarm her of the knife.

As regards the circumstances surrounding the stabbing, the State relied on the evidence of a single witness.

In S v Banana 2000 (1) ZLR 607 (SC), GUBBAY CJ…, had this to say:

“It is of course, permissible, in terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a court to convict a person on the evidence of a single, credible and competent witness. The test formulated by De VILLIERS JP in R v Mokoena 1932 OPD 79 at p 80 is that the evidence of a single witness must be clear and satisfactory in every material respect.”

In our view, Munyaradzi Gwezuva was a convincing witness. He gave his evidence confidently without any palpable bias or exaggeration. For example, he frankly told the court that he found the accused and deceased exchanging blows and that at one time the deceased threw a punch after the accused had advanced towards him. Further, he said he did not see how the accused armed herself with the knife. If this witness was biased he could have said he saw the accused pick up a knife and advance towards the deceased.

Also, there is sufficient corroboration of this witness' testimony.

This support comes from the other person who witnessed the stabbing, namely, the accused herself. She agreed with this witness that when he entered the room he found them exchanging blows. She also admitted that she bit the witness on the neck and that she jumped and leapt forward in order to reach the deceased who was standing behind the witness. Finally, she corroborated Munyaradzi's evidence on their incessant fights and that on the day in question she was moderately drunk. For these reasons, this court does not find it hard or difficult to believe Munyaradzi Gwezuva's testimony. We accept his evidence in toto.

The second State witness was Alice Phiri who is the deceased's mother. The witness simply narrated the events that occurred when the deceased and the accused visited her late that night. They discussed a number of issues including the woman the deceased said he had impregnated. At one time, the accused's phone rang and she went outside to answer it. The deceased wanted to spend the night at the witness' house but the accused insisted that they go to their house. They eventually left but the accused appeared angry over the pregnancy issue. She described the accused as a “cheeky” person.

In our view, the bulk of this witness' evidence is character evidence which is generally inadmissible.

She does not have relevant evidence as regards what transpired on the night in question when the deceased was stabbed. Her evidence on the motive for the murder is purely speculative. She was totally overcome by emotion to the extent that she did not hide her dislike of the accused. Her testimony on the nature of the relations between the accused and her son coincides with that of Munyaradzi Gwezuva and the accused. We therefore accept this latter portion of her evidence together with the discussion she held with the deceased in the presence of the accused.

After this witness, the State counsel applied for the evidence of the rest of the witnesses to be admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The defence counsel did not oppose the application and the evidence of the following witnesses was so admitted:-

(i) Farai Moyo;

(ii) Tessa Gumiremhete;

(iii) Stanely Chiwani;

(iv) Ebias Govhi; and

(v) Dr S. Pesanai.

The State then closed its case and the accused gave evidence in her defence.

The accused said her parents separated when she was 4 months old. She grew up in Kwekwe with her mother. The deceased met her in Kwekwe and brought her to Bulawayo. The accused managed to complete primary education only. She told the court that she is also known as Chipo Makhabo. The accused and the deceased were cohabiting for 6 years before this offence and during this period they used to engage in physical fights when drunk.

On the day in question, the accused and the deceased had planned to go to Harare but before they embarked on the trip they had to first have the motor vehicle they were going to use repaired. She said she started drinking castle beer at 3pm. When they were in Richmond her phone rang and the caller said she wanted to speak to Simba, her husband. Later, the same caller sent a message asking why she did not leave the deceased alone. Upon the deceased's return, they quarreled over the message. They then visited her mother-in-law at Nkulumane where they had supper. Later, they arrived home at approximately 03:00 hours and she went straight to bed. The deceased entered the bedroom and woke her up saying they should discuss the issue they had not finalised. When she remained lying down, the deceased slapped her twice and she got up and pushed him away. The deceased pushed and kicked her. He later removed the top part of the fan and assaulted her with the handle until the base separated from the stand. She fell down and picked up a half brick which she threw at the deceased.

According to her, Munyaradzi Gwezuva entered the room while she was on the floor and he asked her what was happening. She then told him that the deceased was being disrespectful of her. Munyaradzi stood in between them and she told him that the deceased was disrespecting her by giving her phone number to his girlfriends. As regards how she armed herself with a knife, she said she simply stretched her hand to a stand where knives and cooking sticks are kept and took it without realizing that it was something “dangerous”. At that stage, Munyaradzi held her hand and she bit him on the neck. She then said, “I got free…, and he tried to get hold of my right hand but he failed. I leapt over to the deceased who was over the other side of Munyaradzi. After I had done that Munyaradzi said you have injured someone. I was startled…,.”

After that they then phoned the police and ambulance. She carried the deceased on her back and later Munyaradzi Gwezuva did the same. The deceased died on the way to hospital before the ambulance arrived. She said she regretted what she had done.

Under cross-examination, she admitted that their union was far from being rosy as they would fight every month over what she believed was the deceased's infidelity. At one time she reported these assaults to the police. She also told her mother who advised her to return home but she disregarded that advice because she wanted to be married. Asked why, in her warned and cautioned statement, she had said it was the deceased who was accusing her of having boyfriends and yet in her Defence Outline she said it was the deceased who had girlfriends, she said she left out some of the things when she gave the warned and cautioned statement to the police. As regards why they fought that morning, the accused said the following: “I asked him why his girlfriends were phoning me. This was after he woke me up. I said he was disrespecting me and he then said he had every right to take whatever number of women he wanted. We started fighting.”

The accused admitted that when Munyaradzi Gwezuva entered their bedroom he found them exchanging blows and not that she was lying down as she had portrayed in her evidence-in-chief. Finally, she admitted that she aimed at the deceased's chest in order to hurt him out of anger. She agreed with Munyaradzi that she was moderately drunk on the day in question.

Facts that are common cause

(i) That the accused and the deceased had been living as husband and wife for 6 years prior to the commission of the crime.

(ii) That the accused and the deceased were in a frosty relationship, characterised by frequent fights over accusations and counter-accusations of suspected infidelity.

(iii) That both were on a drinking spree on the fateful day. They returned home in the wee hours of the day moderately drunk.

(iv)That once in their bedroom, they started quarrelling which quarrel degenerated into a fight.

(v) That a co-tenant, Munyaradzi Gwezuva, broke up the fight by positioning himself in between the two protagonists.

(vi) That the accused, at that stage, picked up a knife and fatally stabbed the deceased in the chest.

(vii) That the deceased died on Munyaradzi Gwezuva's back on their way to hospital.

(viii) That at the time the accused stabbed the deceased, the latter was unarmed.

(ix) That the deceased died from injuries arising from the accused's conduct.

Facts in issue

In deciding which facts are in dispute, the court has to bear in mind that it is only relevant facts that should be considered. In casu, we find these to be -

(i) Whether or not the deceased assaulted the accused with a fan?

(ii) Whether or not the accused knew that the object she picked up was a knife?

(iii) Whether or not the accused intentionally killed the deceased?

(iv) Whether or not, in stabbing the deceased, the accused acted in self-defence?

(v) Whether or not the accused was so provoked to such an extent that any reasonable person in her position and circumstances lost self-control?

Findings of fact

(1) As regards the first factual dispute, we note that the evidence of how the fight started and progressed before Munyaradzi's intervention comes from only one person, namely, the accused. Consequently, the court has no other version to compare with that of the accused. The court accepts that the fan could have been used by the deceased but does not accept the extent to which the accused alleges it was used, namely, that the deceased “battered” her with it until it broke. We are of the view that the accused was exaggerating her evidence in this regard. We say so for the following reasons:

(a) The accused would have sustained serious injuries if the fan had been used to assault her until it “broke”. It is common cause that she did not sustain any serious injuries. This is inconsistent with her version.

(b) Munyaradzi said he was alerted by the sound of something falling down in the two's bedroom. When he got there, he found the fan on the ground with its top removed. We find, therefore, that this sound was from the falling fan.

(2) The accused denied realizing that what she picked up and used to stab the deceased was a knife. Her evidence in this regard is incredible. While denying this fact in her evidence in chief, she admitted, under cross-examination, that she realized that it was a knife. Also, when asked by the State counsel why if she thought what she was holding was a cooking stick she delivered a stabbing blow instead of a strike motion (i.e. up and down motion), all she could say was; “I apologise. I accept it.” She did not say on which basis she believed that what she was holding was a cooking stick. Also, a cooking stick would not have “hurt” the deceased in fulfillment of her alleged intention to “just hurt” him. The accused admitted that she knew that there was such a knife as exhibit 6 on that table.

Her version is incredible in that, firstly, if Munyaradzi Gwezuva saw that it was a “glittering object” why was she unable to see that as well in view of the fact that the room was well illuminated. Secondly, the texture and size of a cooking stick are completely different from that of a steak knife. The accused should have felt the difference, and, by inference, did feel and appreciated the difference.

For these reasons, we find that the accused is an incredible witness whose evidence on this aspect is not worthy of belief. We find, as a fact, that when she took that knife, she knew it was a knife. We also find that the purpose of picking that knife up was to use it to stab the deceased.

(3) The accused denied that she intended to kill the deceased, contending, instead, that she only wanted to “hurt” the deceased.

The question then becomes how does one hurt another by pushing such a dangerous weapon into another's chest?

Intention to kill is, in most cases, established inferentially from surrounding circumstances. In casu, on the admitted facts, and the post mortem report, it appears that the inference is not hard to make. However, in view of the defences raised by the accused, namely, self-defence and provocation it is logical and desirable to first tackle these defences before making a finding on the issue of intention.

(4) As regards self-defence, the accused's evidence that is relevant is that at the time she delivered the blow, the deceased was “throwing punches at her since he was taller than Munyaradzi.”

However, she agrees with Munyaradzi that when he intervened, he grabbed her and both fell down. Whilst on the floor she bit him on the neck after Munyaradzi pinned her down. Munyaradzi let go of the accused and she got up, took the knife and stabbed both Munyaradzi and the deceased in the process. Surely, this sequence of events demonstrates, beyond any reasonable doubt that, at that stage, the accused was the aggressor. The accused does not deny that she stabbed Munyaradzi when he tried to disarm her. Further, the accused, while admitting that she was standing next to an open door, fails to explain why she did not simply walk out when the fight had been stopped by Munyaradzi. Compared to Munyaradzi's version, the accused's evidence is hard to believe. We find, therefore, that at the time the accused stabbed the deceased, the latter was not attacking the former. If at all the deceased threw a punch at this stage, it was in self defence.

(5) In respect of the defence of provocation, the accused's evidence is contradictory and unconvincing. In the closing submissions, it was contended by counsel for the accused that the accused is a “short tempered person and can easily be proved (sic). The slap and battering by the deceased with a fan till it broke so much provoked her that she lost complete control of herself, resulting in her biting Munyaradzi Gwezuva and stabbing the deceased.”

We are not persuaded by this argument for a number of reasons;

Firstly, these facts are consistent with self-defence rather than provocation. Secondly, this is not the basis upon which the accused relied on in her evidence in chief and under cross examination.

Accordingly, we therefore find that the accused gave conflicting versions of the sort of conduct she alleged to be provocative. In any case, we find that if at all there were calls and/or messages, these events occurred during the previous day when the murder occurred on the following morning. We further find, on the accused's own evidence, that she is the one who introduced this topic shortly before they fought in their bedroom. Due to the highlighted contradictions and imperfections in the accused's evidence, we find that her evidence is unreliable and we reject it.

The Law

Murder is defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). Its ingredients are that an accused commits this crime when he or she causes the death of another person -

(a) Intending to kill that other person; or

(b) By continuing to engage in conduct after realising that there is a real risk that the conduct may cause death.

Where the accused intends to cause death, he is guilty on the basis of actual intention. On the other hand, where he does not have actual intention to cause death, but he realises that there is a real risk that death would result, he is guilty on the basis of what used to be referred to as legal intention.

See S v Mugwanda 2002 (1) ZLR 574 (S)…,.

On the basis of findings of fact, including facts that are common cause, listed above, it is clear to us that by plunging the knife into the deceased's chest, the accused foresaw the death of the deceased as a real possibility but proceeded regardless. Put differently, the accused realised that there was a real risk that death would result but continued to stab the deceased in the chest with a very dangerous weapon. We find, therefore, that all the essential elements of murder have been proved by the State….,.

For these reasons we find that the accused contravened section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) in that when she caused the death of the deceased she realized that there was a real risk or possibility that her conduct may cause death and continued to engage in that conduct despite the risk or possibility.

Put differently, we find the accused guilty of murder with constructive intent.

The test for realisation of real risk or possibility is subjective and is provided in section 15 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). It has two components, namely -

(a) Awareness that there is a risk or possibility that the conduct embarked on might result in the relevant consequence and the relevant fact or circumstance existed when the accused engaged in the conduct.

(b) Recklessness. This entails that despite the real risk or possibility the person whose conduct is complained of continued to engage in such conduct.

In terms of section 15(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), recklessness is implicit in the term realisation of risk or possibility. Where awareness of real risk or possibility is proved, recklessness shall be inferred from the fact that the relevant fact or circumstance actually existed when the accused engaged in the conduct.

To deliberately embark on an assault of another person entails an awareness of the real risk or possibility of injury.

The next question to consider is whether the accused, when he assaulted the now deceased, he desired death or death was his aim or object which relates to actual intention OR he did realize that there was a real risk or possibility that his conduct may cause death but nonetheless continued to engage in that conduct despite the risk or possibility of death.

Put differently, the question is that the accused may not have desired to bring about death.

Put differently, the quiz is that the accused may not have desired to bring about death but did foresee it as a possibility when he assaulted the now deceased and was reckless as to whether death ensued.

Did he have the subjective foresight as to the possibility of death but nonetheless exhibited recklessness?

See S v Mungwanda 2002 (1) ZLR 574 (S)…,. - this relates to legal intention or constructive intent.

Our finding is that the accused did not desire death and neither was his aim or object to cause death. The evidence shows that the accused wanted to simply assault the now deceased as a punishment for refusing to perform the ritual the accused wanted. He therefore lacked the actual intention to commit murder.

We are, however, satisfied that the accused did foresee the possibility that whilst he assaulted the now deceased in the manner he did death may result but was reckless as to whether it resulted or not. This can be inferred from the manner of the assault, the injuries inflicted, and the accused's conduct after the assault.

It is our finding that the accused assaulted a 60 year old man who was defenceless. The accused used his open hands or fists, booted feet, switches or sticks. It is clear the assault was over a prolonged period of time. A lot of force was used as the accused broke the now deceased's rib cage - that is three ribs. The now deceased's lungs were damaged. The now deceased bled internally with blood coming from the nose and mouth. The accused did not care to offer any help or call for help, but, instead, kept the now deceased and Maruda Chisahwira prisoners overnight. We therefore have no difficulty in finding that the accused, when he assaulted the now deceased, realised that there was a real risk or possibility that such an assault may cause death but continued to engage in that conduct attacking the chest and the ribs despite the risk or the possibility.

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

VERDICT: Guilty of murder as defined in section 47(1)(b) of the Criminal Code [Chapter 9:23].

The State has conceded that the accused may only be convicted of murder with constructive intent.

We agree with that assertion.

There is no evidence before the court to establish the fact that the accused set out to rob and kill the deceased. On the facts, he, however, foresaw death as a real possibility:

Accused is accordingly found guilty of murder with constructive intent.

We are satisfied that the accused struck the now deceased with the hoe handle twice on the head. The accused delivered two blows, one on the side of the head and the other at the back of the head. Severe force was used as the hoe handle broke into three (3) pieces. This resulted in basal skull fracture which is the proximate cause of the now deceased's death.

Whatever the accused's motivation was he did realise that there was a risk or possibility that such a brutal assault may cause death but nonetheless proceeded to assault the now deceased in that manner oblivious of such a risk or possibility. We are inclined to find the accused guilty of murder with constructive intent.

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

Whereas with murder with legal intent the test is subjective: being whether the accused himself did foresee the consequences of his conduct, but nonetheless continued; with culpable homicide, the test is whether a reasonable person would have foreseen the consequences of the accused's conduct, and whether the accused failed to measure up to that standard.

It is sometimes a very thin line between the worst form of culpable homicide and murder with legal intent. In R v John 1969 [2] RLR 23, it was said murder [with legal intent] and culpable homicide are closely related offences. Together, they cover the whole field of criminal liability for bodily injury, the one taking over where the other leaves off.

The fact of the matter is that both Accused 1, Wiklove Vurayai, and Accused 2, Munyaradzi Vurayai, assaulted both the first deceased, Saul Kani, and the second deceased, Pauro Stanlsus Masimura, in the clear manner explained by the eyewitnesses.

The assaults were both brutal and prolonged rendering both victims unconscious and severely injured. Both deceased had to be hospitalised at our highest referral public hospital. They both, nonetheless, lost their lives. The accused persons used lethal weapons..., iron bars, together with stones and farm bricks. They delivered several blows indiscriminately targeting vulnerable parts of the deceased persons' bodies including the head and ribs. It is clear that both accused persons acted in common purpose as they took turns to assault their victims who were helpless and never fought back.

The accused persons vowed to kill both deceased persons and left them for dead.

While we are hard pressed to find that the accused persons contravened section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) it is clear that they realized that there was a real risk or possibility that their conduct may cause death but continued to engage in that conduct despite the risk. We accordingly find both accused guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

VERDICT: Both accused guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – Murder with Constructive Intent in respect of both counts.

The accused was charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged, by the State, that on 10 January 2017, and at Tsungwesi Business Centre, Odzi, the accused unlawfully and with intent to kill or realising the real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility stabbed Trymore Chivandire with a knife thereby inflicting injuries from which the said Trymore Chivandire died.

The accused pleaded not guilty to the charge and proffered a defence of self-defence.

The accused's Defence Outline, which was later adopted as evidence in chief, was basically to the effect that the deceased assaulted the accused using bare hands and fists. Later, the deceased took out a knife which the accused wrestled to get and stabbed the deceased in self defence.

The summary of the State case was that on the day in question, the accused, who passed by Tsungwesi Business Centre to collect his phone, which he had earlier left for charging, had an altercation with the deceased. The two had a tumultuous history which came about over the headmanship of their village. The deceased's father, as village head, had been dislodged by the accused who was the chairman of the village following resettlement. The deceased and his family were aggrieved by the dislodgment of the deceased's father, one Isaac Chivandire, from the position hence the friction between the parties. This culminated in the parties obtaining a peace order from the Magistrates Court. On the fateful day, the deceased, who could not stand the sight of the accused, ordered the latter out of the shop and while outside the two had a misunderstanding which culminated in the accused stabbing and ripping open the deceased's stomach exposing the intestines. Following the stab wound, the deceased later died and the cause of death was established as hypovolemic shock secondary to bleeding bowel; postmortem report by Dr Forgiveness Chitungo, exhibit 3, refers.

The State adduced evidence from nine (9) witnesses as follows:

Evidence of all the other witnesses except the first, Ngwarai Satuku, and Doctor Chitungo, was formally admitted as it appears on the summary of the State Case in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The evidence of Israel Muguti was expunched from the record as the witness could not be located.

Ngwarai Satuku gave viva voce evidence.

It was clear from the witness that there was bad blood between the deceased and the accused as they struggled over leadership of the village. The witness recounted how the deceased was in the habit of harassing the accused every time they met and how he would seek to violently drive the accused off. On the fateful day, the witness restrained the deceased twice when the latter ordered the accused to leave the beer outlet. According to the witness, he and the deceased and colleagues were drinking opaque beer commonly known as “supa” and that the accused was also drinking the same beer seated at the other side of the beer outlet. The witness told the court that when the accused left the deceased also left. He observed the deceased try to kick and punch the accused but missed as the accused evaded the attack, and, shortly thereafter, he heard the deceased call out to the accused that he had been injured by the accused. He further heard the accused retort that the deceased had pursued him for too long. The witness observed the deceased's intestines were out and he was taken aback.

The witness' evidence was straight forward, as he spoke of the common cause aspect of acrimonious relationship that existed between the accused and the Chivandire's, and, in particular, the deceased.

Dr Chitungo also testified orally.

He basically narrated how he observed the body of the deceased and compiled the post mortem report. The doctor's evidence was clear evidence to follow as he explained his observation. He was highly professional in the manner he testified. Even though he was unnecessarily subjected to lengthy cross examination by the legal counsel, he did not lose his head. He did not attend to the deceased as a patient but carried out a postmortem examination. He observed injuries consistent with assault by a sharp object. His conclusion was well anchored on his observations. The doctor was candid with the court when he pointed out that the injuries could be described as moderate to severe.

We must point out that we wondered where defence counsel got the impression that the doctor said the injuries were neither moderate nor severe. The doctor's evidence could have easily been formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it was clearly not controversial. We hasten to say the doctor, who was highly professional, assisted the court on medical science.

The State also tendered in evidence the sketch plan, exhibit 2, depicting the scene of crime as indicated by the witnesses and the accused. The sketch plan, just as pointed out by the accused, shows that the accused was way ahead of the deceased such that one wonders how the two ended up together at the point when the deceased was stabbed. The State further produced exhibit I, a confirmed warned and cautioned statement by the accused which, in principle, was to the effect that the death occurred when the accused was defending himself.

The accused was the only witness in his case.

He told the Court that he was acting in self-defence and that when he cut the deceased, the deceased was actually on top assaulting him with clenched fists. The accused gave an incredible story of how he reached out for a knife on the ground using his leg while the deceased was mounting and pinning him down.

A lot of questions come out from the accused's version given he told the court he used the knife and that the knife was not his. If the knife fell from the deceased's grip given the lying down position of the deceased, pinned down and facing upwards, one wonders how he could see the knife for him to pull it with his leg and then stab the deceased's buttock and “cut” (the accused's words) the stomach to the extent of having the intestines out. The account of what transpired between the accused and the deceased left the Court with questions as to how the man described by the accused as very drunk would have over powered the accused who was sober and had taken a 20 or 40 metre headstart.

The accused, when probed on events of the day in question, buckled on recounting the sequence of events outside. He waited ready for confrontation as he felt justified since the deceased had for too long pestered, harassed, and belittled him. This was clearly read from his remarks when the deceased cried out over injuries; “you have got what you deserved for you have pestered me for far too long.”

Upon considering the totality of the evidence adduced before the court, the following factors are common cause;

(1) That the deceased and the accused were sworn enemies over leadership wrangles.

(2) That on the fateful day the accused was aggressive toward the deceased and had to be restrained, twice, when he was ordering the deceased out of the beer outlet.

(3) That the deceased stabbed the accused with a knife per his say so even though the knife was not recovered.

(4) That the deceased sustained injuries from which he bled leading to his death due to hypovelcamic shock secondary to bleeding.

(5) That the deceased was drunk and using open hands and booted feet.

We must point out that at the close of the State case the defence applied for the discharge of the accused on the basis that there was no prima facie case upon which a reasonable court acting carefully would convict the accused.

We dismissed the application and pointed out that our reasons would be clear in the main judgment.

It was apparent, at the close of the State case, that the deceased and the accused, on the day in question, had an altercation. Further, that during the physical encounter, the deceased sustained injuries which occasioned his death. The accused was within the vicinity as could be discerned from the State witnesses. The deceased was pierced by a sharp object and the accused's Defence Outline points to the accused's use of a knife.

At the close of the State case, the court is not looking at proof beyond reasonable doubt as it would do at the close of all the evidence but is rather looking at whether nor not, from the evidence adduced, the State has proved or shown a prima facie case. Put in other words, whether or not, at the close of the State case, there is evidence linking the accused with the commission of the offence.

Clearly, from the State case, there is evidence linking the accused with the offence.

Phrased differently, if the accused were to choose to remain silent in the defence case, is there evidence upon which the court can convict? If the answer is in the affirmative then the accused ought to be placed to his defence, and vice versa.

The fact that the deceased was the aggressor in the past, and on the day in question, is not a defence to the alleged criminal offence. The charge as preferred by the State, murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] has a two pronged facet of intention, namely, actual intention or the common law constructive intent that is foreseeability intention as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act. The defence proffered is provided for under section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and is a complete defence to murder, provided the requirements as outlined in section 253 of the Criminal Law (Codification and Reform) Act are met.

Given the evidence that the deceased was unarmed and that he was stabbed when he came into contact with the accused it would be an improper exercise of assessment of evidence to frown at evidence linking the accused to the commission of the offence at the close of the State case. In the face of the prima facie case established by the State at the close of the State case we dismissed the application for discharge of the accused.

An analysis of the totality of the evidence and the applicable law falls under scrutiny as we seek to come up with a disposition of the matter.

The charge of murder, as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] can only be proved where there is both action and intention on the part of the perpetrator. This court, and the Supreme Court, has, in several cases, sought to define what would constitute intention. In S v Memu HB143-13 the court stated that actual intention exists when an accused sets out to cause the death of the deceased and where he foresaw that death was substantially certain to occur but nonetheless persists with his conduct.

See 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.”

In this case, the accused used a knife to stab the deceased in the stomach, albeit once; intestines were exposed leading to loss of blood which occasioned death. The weapon used and the manner in which it was used given the part of the body to which it was directed established the requisite mens rea in the commission of the offence. Given the nature of injuries occasioned, the weapon used, and the manner in which the assault was perpetrated one cannot fail to read realization of risk or possibility of death ensuing from such conduct.

In the case of S v Mhako 2012 (2) ZLR 73 the court discussed the common law concept of “constructive intent” (on defining legal intent behind murder) and its replacement under the Criminal Law Code [Chapter 9:23] with “realisation of risk or possibility of death ensuing from conduct.”

As discussed in S v Mhako 2012 (2) ZLR 73 there are two components to be considered;

(a) The first being whether or not the accused realized that there was real risk or possibility other than a remote risk or possibility that;

(i) His conduct might give rise to the relevant consequence; or

(ii) The relevant facts or circumstance existed when he engaged in the conduct.

(b) The second element of recklessness; that is, whether despite realising that risk or possibility referred the accused continued to engage in that conduct.

In this case, the accused struck the deceased with a knife in the stomach. The accused, in this case, was not being attacked by an armed attacker. The accused was reacting to past harassment and conflict with the deceased. That would be a suggestion of provocation but certainly not a defence to the charge of murder. The accused personally raised self defence as his defence. A close look at the requirements of the defence when viewed with the totality of evidence reveals that the accused does not have that defence available for want of meeting the requirements. For the defence of self-defence to succeed, as provided for in section 253 of the Criminal Law (Codification and Reform) Act, the following requirements have to be all met that:

(i) There must be an unlawful attack.

(ii) The attack must have been imminent or have commenced.

(iii) The conduct must have been necessary to avert the attack and the accused otherwise had no other way to escape from the attack.

(iv) The means used to avert the attack were reasonable.

(v) The harm was directed to the attacker and was not disproportionate to the harm that the accused could have received.

Worth noting is the wording of section 253 of the Criminal Law (Codification and Reform) Act on the requirement of the defence of self-defence by the use of the word 'and.' It is apparent that the requirements are conjunctive and not disjunctive. Thus, a person pleading self defence ought to meet all the requirements in order for the defence of self-defence to be available as a complete defence…,.

See S v Mabvume HH39-16 and also S v Muchairi HB12-13.

In casu, the accused, on being confronted by the deceased to leave the beer outlet, exited, upon realising the deceased was not budging to the restraint by his colleagues. The deceased was belligerent to the accused but the evidence before the court is that he was observed by the State witness trying to punch and kick the accused and the latter evaded the blows. This evidence was not refuted by the accused who actually pointed out that the deceased was very drunk on the night in question and that he used blows and open hands on the accused.

Given this state of affairs then the question that begs of answer is; what unlawful attack was the accused under other than being ordered to leave the shopping centre?

Assuming the deceased was punching the deceased, given the undisputed evidence that the deceased was heavily intoxicated, the next question in relation to the requirements of the defence of self defence would be, given that the deceased was in that heavy or hopeless state of intoxication and not using any weapon on the accused, was it necessary to slice open the stomach to avert an attack of blows, fists, and booted feet from a man under the influence of alcohol?

In the circumstances of this case the answer is in the negative.

The harm was directed to the deceased, but, given his drunken state and that there was plenty of open space for the accused to make good his escape, one cannot help but conclude that using a knife to thwart an unarmed drunken man's attack is disproportionate to the attack and thus unreasonable in the circumstances.

Going by the accused's evidence, and State witnesses, the accused left way ahead of the deceased such that he could have made good his escape without any engagement in combat or confrontation with the deceased. The deceased never used the knife on the accused such as to justify the stab wound that exposed intestines leading to the fatal bleeding.

The deceased had, for long, harassed the accused but such is not a defence for the accused given the events of the day in question.

The accused, when he testified in evidence in chief and under cross-examination, emphasises that he had endured a lot of humiliation at the hands of the deceased and his family. Whereas this might be the correct position and would amount to provocation it certainly is not a defence neither does it bolster the requirements of self-defence. The built up of past experiences at the rough hands of the deceased only bolster and depict a man who stood ready to show that it was time to clearly say enough is enough.

The accused's evidence on how he ended up having a knife and stabbing the deceased was not only incredible but false or fallacious beyond reasonable doubt.

It was apparent from the accused's evidence that earlier on in the morning of the fateful day the deceased had approached him while in the comfort of his home. The deceased was then armed with a knobkerrie and threatening the accused who fled to the mountains. In the evening, the accused was ready for the deceased hence the confrontations. The accused used a knife and no evidence was adduced to show it was not his. All that the accused said was refer the court to the history of harassment at the hands of the deceased and punctuate it with question; “if you were me what would you have done?”

These words resonated well with his last words when the deceased revealed he had been injured.

The accused felt even and that the deceased had got what he deserved. Even if the accused was a victim of the unlawful harassment over the wrangle of village headmanship, recklessness and unreasonableness in the exercise of the right of self-defence does not amount to a defence. As in this case, the attack by a knife on an unarmed, very drunk individual was grossly dis-proportionate and unreasonable in the circumstances.

The defence of self defence cannot be sustained.

The accused, in this case, realised the real risk or possibility that his conduct of attacking the deceased with a knife, that death would ensue, and he, despite the realisation, stabbed the deceased below the umbilicus exposing the bowel/intestines. The deceased sustained injuries from which he bled leading to his death being occasioned by hyprovelomic shock due to bleeding.

Accordingly, the accused is found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused is facing a charge of murder; it being alleged that on 4 April 2014 at House Number 32443 Entumbane, Bulawayo, the accused did wrongfully, unlawfully, and intentionally kill and murder his elder brother Eddington Muchairi.

According to the State summary, Annexure “A” the deceased was 40 years old at the time he met his demise, while the accused was aged 35 years. The two brothers stayed at the same house, 32443 Entumbane. At around 19:30 hours, on the fateful day, the deceased and the accused had an altercation on family issues which resulted in the accused striking the deceased with a hoe on the head and he collapsed. The deceased was rushed to Mpilo Hospital where he succumbed to his injuries on 6 April 2014.

In his Defence Outline, annexure “B” the accused, in denying the charge, denied the intention to kill and raised self defence.

He averred that he was defending himself from the deceased who was approaching him with the intention of attacking him with a stone and from the deceased's wife who had picked up the hoe first and later had thrown it into the garden where he then picked it up.

He added provocation by the deceased and intoxication whose combined effect he alleged made him not realize the real risk/possibility his conduct would cause.

The other addendum was that the deceased, who was intoxicated, had earlier on fallen to the ground a couple of times on a hard surface with rocks.

He said he struck the deceased with a hoe once on the back, slightly below the neck, and once on either shoulder. He denied the allegation that he uttered the phrase “minus one” soon after assaulting the deceased.

The following exhibits were tendered by the State by consent:

(i) Exhibit 1 - affidavit deposed to by Constable Mwembe who identified the deceased's body to Dr I. Jekenya on 7 April 2014.

(ii) Exhibit 2 - the post mortem report number 86/67/2014 by the pathologist Dr I. Jekenya.

(iii) Exhibit 3 - the metal hoe used by the accused to strike the deceased with the following specifications:

(i) Weight = 2,5kg.

(ii) Length of handle = 84,5cm.

(iii) Length of blade = 14cm.

(iv) Sharp edge = 16cm.

Two witnesses, Tragedy Muchairi, the accused and the deceased's sister, and Sikhumbuzo Ncube, the accused's neighbour, gave viva voce evidence for the State.

The evidence of Lovemore Mutsakani, the police officer who recovered the hoe, and that of the pathologist, Dr I. Jekenya, was introduced by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused gave evidence and closed his case.

What is common cause in casu is that on the day in question the accused did strike the deceased three (3) times with the hoe, exhibit 3, bearing the specifications alluded to supra. He denied landing the blows on the deceased's head saying he struck him once on the back and once on either shoulder.

He sought to throw spanners into the fireworks by saying, before the assault, the deceased had slipped and fallen twice on a rocky surface. He did not say the deceased sustained injuries as a result of the fall.

We are not persuaded any bit that the deceased sustained the head injuries observed by the pathologist which occasioned his demise from the alleged fall. We are satisfied that it was the accused who caused those head injuries.

This is corroborated by the evidence of Tragedy Muchairi, whose testimony we accept, that although she did not actually see the accused deliver the blows on the deceased's head; when the accused approached her and the deceased on the road, she jumped across a drain and then heard “boom” the sound of the hoe striking the deceased three (3) times. When she later checked the deceased, he was lying down in a pool of blood.

Sikhumbuzo Ncube also heard the same sound, and after the accused had run away, he found the deceased lying in a pool of blood bleeding from his head.

Also, the pathologist found no injuries on the parts of the deceased's body the accused said he aimed the blows at.

The accused raised three (3) possible defences viz -

(i) Self-defence;

(ii) Provocation; and

(iii) Intoxication.

The latter two (2) can be quickly dismissed as mere sophistry, which, at best, amounts to either extenuation or mitigation or both.

Granted, both the accused and the deceased were intoxicated, but, the accused, clearly, from the evidence, knew what he was doing. He could run and he recalled with clarity all that transpired.

As for the alleged provocation, the evidence does not reveal that he acted in the heat of passion when his name continually featured in the discussion the deceased and Tragedy Muchairi were having as the cause of the family wrangles.

That the deceased's wife shouted at the accused from the yard hurling vulgarities, including referring to the accused's mother's clitoris – we are not persuaded that this occurred.

None of the witnesses heard this except the accused alone.

It is highly improbable that the deceased's wife would allude to her husband's mother's clitoris.

Even assuming she did insult the accused so, the accused had no plausible reason to then direct/vent his venom at the deceased instead of at the deceased's wife. No reasonable man would have lost his self control in the circumstances.

The first defence requires closer scrutiny.

Self defence can only succeed if all its requirements are met. The requirements are:

1. There must have been an unlawful attack which had either commenced or was imminent.

2. Upon the accused or a third party to whom the accused owed a protective relationship.

3. The accused acted to avert the unlawful attack if escape is not practical/feasible.

4. The means used must be reasonable and proportionate to the unlawful attack.

5. The accused must desist as soon as the danger is past.

The evidence in casu shows that the self-defence raised by the accused is a red herring (fallacy). It cannot succeed.

Even the accused's counsel conceded so in his closing arguments.

Admittedly, there was a series of episodes of pushing and shoving e.g. collar grabbing between the deceased and the accused which the sister would quell, including the accused punching the deceased and some stones being held or thrown by the parties.

However, what is crucial is that, at the critical moment when the accused struck the deceased with the hoe, the accused was not under any attack at all from the deceased.

According to Tragedy Muchairi's evidence, she was standing with the deceased on the road and the accused had gone back to the house. The accused then returned wielding a hoe which he then used to butcher the deceased.

The accused was therefore not under attack at that time.

Even if the court were to be benevolent to the accused and go by his version, that the deceased was following him holding stones, this still would not exculpate him.

He said he ran into the yard and the deceased's wife dropped the hoe and the deceased was following him. He then picked up the hoe and went back towards the deceased who bent down and he then struck him and he fell  When the deceased tried to get up for the second time he delivered two further blows.

(i) First, the accused had the opportunity to escape instead of going back to meet the deceased;

(ii) Secondly, he had no reason to strike the deceased, who, at the time, was bending down; and

(iii) Thirdly, the accused had no cause to deliver the second further blows to a man who was already down and was failing to rise – the feared danger was already past.

The means used to avert the imagined attack were both unreasonable and disproportionate to the attack. The accused did not desist as soon as the danger was past.

In the event, self defence cannot avail him.

The next stage of the enquiry, following the failure of the raised possible defences, is whether the accused had the intention to kill the deceased.

He contended that he harboured no such intention.

It is not cumbersome to conclude that the accused did have the intention to kill if account is had of the following factors:

(i) The weapon used – a metal hoe weighing 2,5kg with its handle 84,5cm long, a blade of 14cm long whose sharp edge was 16cm wide. This is undoubtedly a mean and dangerous weapon to use on a human being. The accused had earlier on wanted to strike the deceased with the hoe but the sister had wrenched it from him and thrown it away. He was undaunted.

(ii) The part of the human anatomy the blows were aimed, the head – a very vulnerable and delicate part of the body.

(iii) The number of blows delivered, three (3), shows determination and perseverance.

(iv) The degree of force used, as gleaned from the post-mortem report, Exhibit 2, was very severe in view of the nature of the injuries caused.

(v) The injuries actually occasioned –

(a) There is a 3cm very deep transverse wound about 7cm vertically above the left ear. There is associated soft tissue haemorrhage.

(b) There is a 2,5cm wound (very deep) about 5cm above and slightly in front of the left ear. There is associated soft tissue haemorrhage.

(c) There is an 8cm vertical superficial wound about 5cm in front of the left ear running from the left frontal (forehead) of the face down to the side of the upper jaw (left).

(d) Just 1,5cm from wound (c) going towards the left ear is an oblique superficial wound 3,5cm.

These caused the deceased's death, whose cause the pathologist listed as severe brain damage with haemorrhages, skull fractures, and callous head injury.

(vi) The phrase “minus one” uttered by the accused as he ran away from the scene is indicative of an intention to kill.

Despite the accused's denial of it, two (2) prosecution witnesses, 1 and 2, corroborated each other that the accused did utter the words. His sister and neighbour friend could not have contrived, without basis, to lie against the accused on this aspect.

The penultimate question is whether the intention to kill was actual or constructive.

We agonised on the issue and came to the conclusion, that, taking into consideration all the attendant circumstances of the case, it was a borderline case between actual and constructive intent and it is only fair and just to give the accused the benefit of the borderline doubt and eschew a conviction of murder with actual intent.

The circumstances of the case justify the conclusion, that, when the accused attacked the deceased with the hoe in the manner he did, he must have realized that there was a real risk/possibility that his conduct may cause death and he continued to engage in that conduct despite the risk or possibility.

In the result, the accused is found guilty of murder with constructive intent.

This case involves an allegation of murder of one brother by the other blood brother. It is the State's contention that on 15 August 2017, and at Village 51 Nyamusosa, Mayo, the accused unlawfully caused the death of Gabriel Masomera by striking him with a log once on the head with the intention to kill him or realizing that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility, resulting in injuries from which Gabriel Masomera died.

The accused pleaded not guilty to the charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused raised a defence of self-defence.

In his Defence Outline, the accused pointed out that the brothers, who had been assisting their parents at the brick kiln, had a misunderstanding over allegations by the deceased that the accused had extra marital affairs. This issue was brought to the attention of the accused in the presence of his 10 year old son, one Wisdom Masomera. This did not go down well with the accused hence the two engaged in a war of words. The mother, on realising the two were argumentative, ordered them to proceed to their respective homes. Whilst on the way, according to the accused's version, the deceased started physically assaulting the accused thus prompting the accused to pick a log and strike the deceased once and then the accused fled as he was in fear that the deceased would get up and follow him to fight again.

The summary of the State case captured the basis of the allegations on the day in question as follows:

The accused and the deceased were at their parents' home assisting their parents to bum bricks at a kiln. The deceased remonstrated with the accused on the latter's behaviour of having extra-marital affairs and this led to a misunderstanding. The accused left for his home but decided to waylay the deceased who followed and the accused struck him with a log.

The issue that falls for determination is whether or not the accused had the requisite mens rea when he caused the death of the deceased.

The State adduced evidence by tendering documentary evidence and leading evidence from witnesses. The confirmed warned and cautioned statement of the accused. The post mortem report by Dr Roberto Trecu, Affidavit of evidence by Dr Matsvai and sketch plan drawn through indications of witnesses and the accused were produced as exhibits 1-4 respectively by counsel.

Evidence of all the other witnesses, 2 and 4-11, was formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Rosemary Chitagu, the mother of the accused and the deceased, and Winston Muchineripi Masomera gave oral evidence.

Rosemary Chitagu's evidence was on common cause aspects that on the day in question their children, including the deceased and the accused, were assisting them at the brick kiln. In the evening, the family gathered by the fire outside while the father and mother were inside the kitchen hut. According to the witness, the children, that is the boys, were drinking beer courtesy of the witness and her husband, the second witness. According to the witness, the beer purchased for the “boys” was two (2) crates of opaque beer commonly known as “scud”. The witness told the court that not all the beer was consumed and none of their children was drunk. The witness told the court that the deceased remonstrated with the accused over his wayward behaviour of having extramarital affairs. This did not go well with the accused who left for his home. The deceased remained behind and indicated he would stroke the fire to ensure that the fire at the kiln was attended to. Thereafter, the deceased bade his mother farewell.

Within a short space of time she heard noise and words to the effect “arise, arise, muka, muka” and advised her husband that their children were fighting but the latter was dismissive. The witnesses went out to investigate and she found the accused standing while the deceased was lying on the ground injured. The witness told the court that the accused was shouting in a weird manner that she thought maybe he was possessed given she was used to him being a respectable young man, but, on that day, when she sought clarity from him he disrespected referring to her in the singular; “hey you don't talk to me.” The accused went away with the log while the witness was trying to resuscitate the deceased using water after she had notified her other son Benjamin. The deceased regained consciousness and was taken to the clinic then hospital where he eventually died.

The witness' evidence was straight forward and she maintained, understandably, as a mother, that she was shocked in the manner the accused had struck his brother given ordinarily the two were close and the accused respected his elder brother. She maintained that there was no illicit brew of nipper or kachasu/tototo partaken by the children at the residence. She also suggested she did not know how to brew this beer.

Her evidence in this respect, and on all material aspects, was confirmed and corroborated by the husband Winston Muchineripi Masomera.

The latter confirmed that their children were, on the day in question, drinking opaque beer commonly known as “scud”. This was after assisting the parents at the brick kiln. His evidence as regards the sequence of events was the same as that of his wife. The accused left after having been remonstrated with over having extra marital affairs and an argument about tobacco seed. A while later the witness was called to the scene where the deceased was lying unconscious. Despite taking the deceased to the clinic and hospital the latter died.

The witness was firm that there was no illicit brew being partaken at his house on the night in question but opaque beer. He, just like his wife, pointed out that his wife could not brew the illicit beer as she was a member of the apostolic sect. He was equally surprised at how the accused turned violent on the night in question as he ordinarily respected his elder brother.

The accused was the only witness in the defence case.

He maintained that he was acting in self-defence and that he was intoxicated.

Upon considering the totality of the evidence, the court is left to decide on whether or not the defences of self defence and intoxication can be sustained in this case; or, put in other words, whether or not the defences, as suggested by the accused, negate the intention to kill the deceased.

The accused, in his account, pointed out that the deceased punched him with clenched fists and also struck with open hands. This, he said, happened while at the homestead when they had a misunderstanding about his alleged issues of extramarital affairs. This alleged physical combat was not confirmed by the State witnesses who pointed out that their children/sons only shouted at each other about the issue but there was no exchange of blows.

Both the father and the mother intended to stop the argument over tobacco seed and/or extra marital affairs.

By the way, we have no reason to doubt the State witnesses' evidence.

If we are to accept that the accused did not waylay the deceased his version was that the deceased was assaulting him with open hands hence he defended himself.

The question; is the defence of self-defence available in the circumstances?

Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the defence as a complete defence where all requirements therein are met. The requirements can be safely summarized as follows:

1. An unlawful attack must have commenced or be imminent.

2. The conduct by the accused was necessary to avert the unlawful attack and that he could not otherwise escape from the attack.

3. The means used to avert the unlawful attack were reasonable in all the circumstances and the harm caused was not grossly disproportionate to that liable to be caused by the unlawful attack.

In the circumstances of this case, all the requirements cannot be reached.

The accused used a log to strike the deceased's head whereas the accused stated that the deceased was unarmed; such a reaction was grossly disproportionate, and, in any event, given the good head start by the accused one wonders why he did not make good his escape.

When the accused testified in evidence in chief, and under cross examination, and even in the closing submissions, it was apparent the defence of self defence was raised as a mere gamble as the accused failed to account for how he was attacked or assaulted to warrant the use of a log to avert the attack.

The defence could not be substantiated given the sequence of events.

The impression created from the accused's version is that he did not take lightly to being remonstrated to about extra marital affairs during the presence of his 10 year old Wisdom Masomera. This would have been an issue of provocation but not a defence to murder. Clearly, the suggested provocation and time taken to react would not vitiate the intention.

The other defence raised, but not really pursued in the defence case, is, intoxication.

The accused's version was that he and his brothers had partaken illicit brew, kachasu. This was contrary to the evidence of both the mother and the father of the accused who gave evidence to the effect that opaque beer was consumed and that none of the children was drunk. Even, if it was to be accepted the accused was drunk, such voluntary intoxication leading to drunkenness is not a defence to murder but might be mitigatory. The accused, in testifying and recounting the sequence of events, revealed he was appreciative of what was going on. He was not amused to be remonstrated with over extra-marital affairs in the presence of his child which would be natural. This reaction by the accused shows he was in control of his faculties.

It is common cause that the accused struck the deceased in the head using a log. The assault caused the deceased to fall and he sustained head injuries. It is also not in dispute the deceased died due to severe cerebral oedema subarachnoid hemorrhage and head trauma due to blunt trauma.

The question is; did the accused have the requisite intention to kill the deceased?

The answer comes from the totality of the circumstances and the definition of intention as laid out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and case law; S v Mugwanda 2002 (1) ZLR; S v Mema HB148-13;

(1) It is either one sets out with an aim to kill and achieves the desires or one desire or one sets out to achieve another objective, and, in doing so foresees the death of his victim as substantially certain but nevertheless proceeds with the conduct. This would constitute murder with actual intention.

(2) Secondly, the legal intention, which is where one realising that there is risk or possibility other that remote risk or possibility that his conduct might give rise to death and despite the realisation proceeded with the conduct. In this case, given the circumstances, one cannot say the accused set out with an actual intention to kill and killed the deceased.

It appears the accused struck the deceased for having humiliated him in front of his child. When he did so he struck using a log on the head, a vulnerable part of the body. Given the nature of injuries occasioned by the fatal blow and where it was aimed, the weapon used, a log, and that severe force was used follows that the accused was aware that his conduct might cause death and, despite the realization of the risk or possibility, he persisted with his conduct.

In any event, our courts have always highlighted that assault on the head, which is a delicate part of the body, is almost always likely to cause death.

As occurred in this case, the assault in the head was fatal in circumstances where the accused realized the real risk or possibility of death and he persisted with his conduct. The accused thus had the legal intention. See S v Mhako 2012 (2) ZLR 73.

The accused is accordingly found guilty of murder as defined in section 47(1)(b) of the Criminal Law Code [Chapter 9:23].

The accused was charged with murder in that on the 8^th day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died.

The summary of the State's case was that on the day in question, the accused, Arnold Jeri, who had been drinking beer at Umsweswe Bottle Store when the deceased, Linda Mushangi, visited her friend, Tatenda Gwata, had tried to endear himself to the deceased but had been spurned. This had apparently irked the accused who had slapped the deceased on the face with an open hand and had intensified his assaults with booted feet. The deceased had picked up an empty beer bottle and had hit him with it.

Attempts had been made to stop the accused from assaulting the deceased. She had used this window of opportunity to run away from the accused by seeking refuge from some patrons. The accused had followed her with a knife and had tried to stab her from both left and right sides before he succeeded in stabbing her in the stomach from the left. She had screamed and had run out of the room and had collapsed at the foot of the veranda. The accused was said to have run way from the scene. He had eventually surrendered himself at ZRP Nyamapanda on 14 November 2016.

The accused's defence was that the deceased had shouted at him using obscene language and that she had caught him unaware and struck him twice with a beer bottle on the head. He had used his knife in self-defence as he wanted to disarm the deceased whom he said was holding a broken beer bottle. It was during this time that he had accidentally stabbed the deceased's stomach....,.

The post-mortem report done by Dr Gonzalez, a duly attested medical practitioner and forensic pathologist. His report concluded that the deceased died as a result of hypovolemic shock, abdominal aortic artery damage, and the stab wound....,.

It was therefore not in dispute that the accused had stabbed the deceased in the stomach.

The main issue for resolution were the circumstances surrounding the stabbing; in other words, the reasons for the misunderstanding....,.

The State's evidence

Tatenda Gwata: She worked as bar lady for the owner who had several bars and bottle stores. The deceased was her friend who would come to the bar to assist her with relief duties and preparing food. She knew her as a relative of one of the women who also worked at the bar. She also knew the accused as a patron at the bar. He was called Pipiro by his friends. She had been working at that particular bar for a week as the owner had several bars.

Her collection of the events of that day was that Kabanga Muyambo had been the first to arrive at the bar and she had sold him beer. The accused had then arrived later. The deceased had arrived between 16:30 and 17:00 hours. They had discussed what they would eat and had decided on buying plain sadza to consume with milk. It was when the deceased was coming from buying the sadza that the accused had thrown an empty bottle of water at her and the deceased had protested and indicated that she did not like that behaviour. The accused had not responded, but, when they started eating he had returned again and wanted to know why he had been excluded from joining them in their meal. He had not been answered.

It was at around 20:00 hours that the accused had again approached the deceased saying she should come to him as he had summoned her on several occasions. The deceased had responded that she had already told him that she was not interested in his advances. She had asked the deceased if she had any relationship with the accused to which she had said no. The accused had, at that point, slapped the deceased on the face and had kicked her resulting in her hitting the refrigerator. He had also gotten hold of the deceased and had head butted her several times. At that point this witness had screamed and had thrown a bottle top at Kabanga Muyambo, the accused's friend, who had been asleep. So vicious was the attack against the deceased that she had had to close her eyes and hold her face in her hands as she let out that the accused would injure the deceased from the way he was head-butting her. It was also at this point in the assault that the deceased had taken an empty beer bottle and had hit the accused with it.

Kabanga Muyambo had woken up and had tried to pull the accused away but he had been beaten and pushed against some empty crates stacked against the wall. The accused had pushed Kabanga Muyambo outside the bottle store and had himself come back to continue his pursuit of the deceased who had now taken refuge behind one of the three patrons who were in the bar. He had continued his assault even as one of the men stood between the accused and the deceased as a human shield.

It was also her evidence that two of the men had managed to subdue the accused and had taken him out of the bar but he had come right back in. It was when he returned again that he had drawn a knife from his satchel which he had been carrying on his back. He had, once again, gone to the deceased who was behind a patron and had tried to stab her several times until he had been successful in doing so on the left side. The deceased had screamed that she was dying and had run outside at that point before collapsing to the ground.

The accused had put back the knife in his satchel and had walked out of the bar.

Whilst at the height of the assault on the deceased, she had hidden behind a door; she had, nonetheless, been able to continue observing from a vantage point provided by wide gap between the hinges.

The police had been called and had attended the scene. She had only left the following morning when her statement and photographs from the scene had been taken.

Asked to comment on the accused's sobriety at the time of the assault she stated, in her examination in chief, that on that day she herself had not observed him drinking but had noticed that he was carrying a bottle of water which looked like it had water inside although she did not verify its actual contents. She however did not think he was drunk.

As to whether the deceased had provoked the accused in any manner she had not heard anything and certainly at no time had she heard the deceased hurl any insults at the accused.

In cross examination, she confirmed when asked that she had heard that the deceased was a sex worker but that she had not seen her solicit at the bar in question.

Counsel for the accused had also put it to her that she herself was a sex worker like her friend before the court objected to this line of questioning of the witness's moral turpitude as irrelevant to the case at hand.

She conceded that hitting someone with a bottle was dangerous.

She was asked why the other three men who were drinking in the bar had not intervened at the time of the slap on the basis that if she had done nothing to the accused they would not have left him to assault the deceased. She did not know their reasons for not intervening then.

She had also stood steadfast that the deceased was no longer armed with a bottle and was merely hiding behind the man in question for protection when she was stabbed by the accused.

As regards the accused's sobriety, it was put at her that the bottle of water that the accused was carrying may in fact have contained alcohol and that she could therefore not dispute that he was drunk.

From her evidence, therefore, what we deduced materially were the following crucial points:

(a) It was the accused who had assaulted the deceased first and had engaged in a vicious assault including pushing and head-butting the deceased.

(b) It was during this assault by the accused on the deceased that the latter had retaliated by hitting him with a bottle.

(c) Efforts had been made to restrain the accused from further assaulting the deceased before the fatal stab.

(d) At the time of the stabbing, the deceased had been standing behind a patron who had stood as a buffer between the accused and the deceased.

Kabanga Muyambo: His evidence was that he had arrived at the bar at 11am in the morning whilst the deceased had arrived at around 15:00 hours. He said he had bought the accused three opaque beers and that when the accused had finished these he had consumed a drink called double punch mixed with water. He himself had fallen asleep at around 18:00 hours whilst the accused whilst still drinking his double punch.

However, he had still been awake when the deceased and Tatenda Gwata, the first witness, had eaten their meal. He had observed the accused talking to the deceased but said he had not heard what the conversation had been about but the tone had been cordial. He said he had been awoken suddenly by glass shards falling on him when a bottle hit the accused. He had seen the accused head butting the deceased and had grabbed the accused who shook himself free and jumped over the counter and continued beating the deceased. He had followed him and dragged him from there and the accused had started beating him until he fell against some crates alongside the wall. He said he had managed to pull the accused outside but the latter had rushed back in again.

This corroborated Tatenda Gwata's evidence that there had been efforts to restrain the accused from assaulting the deceased save to say that she had said it was the accused who managed to push this witness outside whilst the witness said it was him who pushed the accused outside. This was not material since no two persons experiencing the same event have identical experiences particularly because they cannot be precisely at the same place at precisely the same time; BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

The crucial point on which there was consensus was the clear effort to restrain the accused.

Further corroborated was Tatenda Gwata's evidence that the deceased had sought shelter behind one of the patrons and that the deceased had not been holding any beer bottle fragment at that time.

As this witness was about to return inside he had observed the accused putting something in his bag and walking away.

His view was that the deceased was not a violent person and that if any provocation had taken place it was likely to have been the accused who had provoked the deceased as he had witnessed the two talking nicely before.

He further corroborated the first witness's evidence that on that day the deceased was definitely not drinking at the very least up to the point he fell asleep. He told the court that he had known the accused for over a year and that he had at least three girlfriends at the same time....,.

The Accused's evidence

The accused then gave his evidence.

He could not remember what time he had arrived at the bottle store as he had no watch. He surmised it was in the afternoon around 14:00. He confirmed that he was drinking beer bought by Kabanga Muyambo and not by himself. He could also not recall what time the deceased had entered the bottle store save that she had arrived when he was already there. His evidence was that the deceased had come to the counter where he was and they had started talking and drinking together. It was whilst they were talking that the deceased had stated that she wanted to sleep with him for a small fee. He had told her he had no money but she had been persistent.

According to him, the deceased had then hurled insults at him calling him useless and a pauper and had then poked him on his forehead with her finger. She had used profanities and had even slapped the accused after uttering the profanities. He had become angry at the insults and had slapped her and grabbed her head and butted her. That is also when she had hit him with a bottle.

He said she had continued uttering profanities and had come after him with a broken bottle. That was when Kabanga Muyambo got hold of him but he had shaken him loose. The deceased was by now behind one of the patrons but was still trying to advance to him with a broken bottle. He had taken out the knife to scare her from using the bottle and had intended to strike her on the arm. He had stabbed her in the stomach instead when he thought he had stabbed her in the arm. He had the knife on him because he had intended to go hunting....,.

Analysis of the factual evidence

The evidence at every turn pointed to the accused having been the aggressor. When the bottle was thrown at him by the deceased it was in her self-defence as she was being head butted by the accused.

There was no evidence that the deceased was provoked. Instead, he was the one who provoked the deceased when he assaulted her for ignoring his advances. There was also no credible challenge to Tatenda Gwata's evidence regarding the accused's harassment of the deceased in the initial instance as being what led to the unfortunate events.

Indeed, the court observed that the accused was most at pains in crafting his version of events when it came to relating the cause of the violent rupture. What was particularly observable from the accused's narration of his version of events was that he clearly struggled to tell his story. His own counsel had to prod him several times to give the fuller accounts of what happened. This, to the court, was indicative of a person who was having to make up his story as he went along since deceivers tend to use fewer words in communication and make fewer factual statements for fear of being caught in the lie; see BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

His narrative was no more than pejorative utterances about the deceased as a 'prostitute.”

The story that the deceased had harassed him for sex and had become annoyed at his lack of co-operation and uttered profanities at him was clearly made up. There was no evidence from any of the two witnesses that they had heard the deceased utter any obscenities against the accused as he claimed that could have led to his being provoked as he was the first to assault the deceased before she threw the beer bottle at him when he was head-butting her.

She had been assaulted for showing no interest in him and rejecting his advances. In such a situation where there is a contest of credibility between an alleged male assailant and an alleged female assailant the court is indeed entitled to take cognisance of the fact the vast majority of crimes of violence are committed by men.

The self defence argument equally fails to hold.

We found the evidence by Tatenda Gwata and Kabanga Muyambo that there had been efforts to get the accused to stop his assault on the deceased by taking him outside to be credible. At the time that he stabbed the deceased, there was no unlawful attack upon the accused that was imminent and from which he needed to protect himself.

We also found their evidence credible that the deceased was, at that time, no longer armed with a bottle.

We also found Kabanga Muyambo's evidence credible that when he woke up to the bottle shards, and observed the deceased fighting the accused behind the counter, she was now at that time merely using her hands, defending herself and simply trying to shake off the accused. In other words, the bottle incident had passed which, in any event, the evidence showed, had been instigated by the accused head butting of the deceased. Indeed, if she had still been holding a broken bottle piece at the time of the stabbing, then the reasonable reaction of the man she stood behind would have been to face her in an effort to get her to drop the bottle.

The deceased's position behind this man suggests, in every sense, that she was in a protective as opposed to a combative position. The accused was therefore clearly not in any immediate danger at the time that he stabbed the deceased.

He was on a mission to inflict harm which he had started. He had already decided very earlier on before his fatal stab to avenge what he perceived as a rejection by the deceased of his advances by assaulting her. The deceased had sought the protection of patrons but he had doggedly persisted with his assault until the fatal stab. She was killed as a result of a stab wound to the stomach. He had clearly aimed at a fragile part of the body to inflict maximum harm. So vicious had been the stabbing with the knife that it had exposed her intestines.

Ultimately, this is a criminal case of murder in which a woman said no to a man's advances and was killed for doing so....,.

As regards the nature of legal intent behind the murder, the case of S v Mhako 2012 (2) ZLR 73 (H) discusses the common law concept of “constructive intent” and its replacement under the Criminal Law Code [Chapter 9:23] with “realisation of risk or possibility of death ensuing from conduct.”

As discussed therein, there are two components to be considered;

(a) The first being whether or not the accused realized that there was a risk or possibility, other than a remote risk or possibility, that;

(i) His conduct might give rise to the relevant consequence; or

(ii) The relevant fact or circumstance existed when he engaged in the conduct.

(b) The second is a component of recklessness; that is, whether, despite realising that risk or possibility referred, the accused continued to engage in that conduct.

In this case, we find that the accused realized the real risk or possibility that his conduct, of attacking the deceased with a knife, that death might result. Secondly, despite that realisation he had continued with this conduct regardless.

The verdict is that the accused is found guilty of murder in terms of section 47(1)(b) of the Criminal Code.