The accused is facing a charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleges, that, on 24 February 2019, and at Zandoyi Village, Bvumbura, Chief Mutambara, Chimanimani in Manicaland, the accused unlawfully caused the death of Mejury Matiza by striking her several times on her body with a stick, intending to kill her or realizing that there was a real risk or possibility that her continued conduct might cause the death continued to engage in that conduct despite the risk or possibility thereby causing injuries from which the said Mejury Matiza died.
The accused pleaded Not Guilty to the charge.
In her Defence Outline (Annexure “B”) she stated that she never assaulted the deceased either as alleged or at all. She denies causing the death of the deceased or act in a manner in which the deceased's death could have been foreseeable.
According to the accused, she saw the deceased slip and fall hard on a rocky and stony surface at her homestead; thereafter, she observed the deceased fall three more times. When the deceased fell for the fourth time, the accused went to her aid and carried the deceased home.
She further stated, that, she will dispute the evidence of Gracious Matiza, Godfrey, and Joseph Matiza in as far as it suggests that she assaulted the deceased and caused some visible injuries.
She indicated, that, she will accept the rest of the State evidence subject to clarification of the pathological report only.
She prayed for an acquittal.
The facts of the matter appear from the Summary of the State case (Annexure “A”).
The accused is aged 28 years; the deceased was the accused's step-daughter aged eleven (11) years. On 24 February 2019, at around 12:30 hours, the accused was at home with her two step-daughters and her son, Leon.
The accused sent Gracious, aged ten years, to a neighbour's house. The accused picked a stick, called the deceased into the bedroom house, and, whilst inside the house, assaulted the deceased several times upon her body. The deceased exited the house crying holding her head and back.
The accused sent the deceased to go and fetch water. On her way to fetch water, the deceased was instructed to drive a beast away from the fields; on her way, the deceased fell down three times and the fourth time she became unconscious.
The accused took the deceased to their homestead; the deceased was vomiting.
The deceased's father, Joseph Matiza, rushed to the scene from the garden when he heard the deceased crying. Joseph enquired from the accused what had happened, but, the accused person denied any knowledge as to what could have happened.
Joseph Matiza took the deceased to Mutambara Mission Hospital whereupon arrival she was further referred to Mutare Provincial Hospital where she was admitted. On 9 March 2019, the deceased died.
A post-mortem by Dr Aisa Serranole concluded, that, the cause of death was due to brain haemorrhage, head contusion, and head injury.
STATE CASE
The evidence of the State witnesses, namely, Temba Mutsakani Manzete, Caroline Kitsire, Innocent Zano, Shepherd Mataure, Catherine Mvundure, Blessing Zumba, Partson Mudimbwa and Christina Chikodza was, upon the application of the State and consent of the defence counsel, admitted in court in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].
The confirmed warned and cautioned statement of the accused was produced by consent and marked exhibit 1. The English version of the statement reads:
“I understood the nature of the allegations being levelled against me by the State. I do not admit to the charge. On this day, I sent the now deceased to the well to fetch some water. On the way, I further instructed her to drive away some cattle so that they should not enter into the field. She then slipped and fell down as she ran to drive cattle. I approached her and she appeared to be very weak and I lifted her and ferried her home. I did not assault the now deceased. She was later taken by Joseph Matiza to hospital.”
The State called Gracious Matiza as its first witness.
The deceased was her elder sister, and the accused is the witness's step mother to her (Gracious). The accused was in court because she assaulted Mejury. She did not know the offence which had been committed by Mejury that caused the accused to assault her. What she recalls was that when she came back to her parent's homestead, from the errand she had been tasked by the accused, she heard the accused calling the now deceased for the latter to go into the house where the accused was.
This call to the deceased occurred after the accused had picked a firewood stub.
The deceased heeded to the call and went into the house. Later, the witness heard sounds of someone being beaten, she then observed the deceased emerging from the house crying. She was holding a five litre plastic container in one of her hands. The witness heard the accused ordering the deceased to go and drive some cattle which were about to go into the field.
She saw the deceased obliging to the order, but, before the deceased could reach where the cattle were, she fell; she saw her rising, stood up but fell again for the second time; stood up once again but fell for the third time; she managed to rise but fell for the fourth time.
At the fourth fall, she never rose again.
When she heard the deceased being assaulted by the accused inside the house, she was standing at a distance of about fifteen metres from the house.
She identified the firewood stub in court as the one which was used by the accused to assault the deceased.
She further told the court, that, when the deceased fell, the accused was standing within the yard of the family's homestead.
The accused later went to where the deceased was lying, lifted her up, tried to console the deceased, and carried her to the house.
She added, that, when the deceased emerged from the house, immediately after the assault, she observed that the deceased was touching the back of her head and also her back, along the waist.
She does not agree with the accused when the latter says she never assaulted the deceased.
Under cross-examination by counsel for the accused, the witness disputed that where the deceased fell is a rocky or stony area. She also stated that she did not access the house or hut where the deceased was being assaulted but she could hear the deceased screaming whilst inside the house, and, simultaneously, the accused was hushing her to keep quiet.
At the time of the assault, the witness could see her uncle, Godfrey Matiza, seated at his homestead, but, she would not know whether Godfrey could hear the deceased screaming.
She also repeated what she stated in her evidence in chief, that, when the deceased emerged from the house where the assault took place she was holding her left side of the head and back; did so even at the time she went to fetch water, and was still sobbing, and, at times, cried loudly.
She also confirmed, that, when the deceased went to drive the cattle, she ran, but, still holding her back and waist.
The witness elaborated, that, when the deceased fell, she did so by the face and stomach; she never fell on her back.
She also noted, that, when the deceased emerged from the house, after the assault, she was drooling.
After the accused lifted the deceased, the witness noted an injury on the left side of her belly region; Godfrey and Joseph also saw the injury.
She also told the court, that, she is the one who identified the firewood stub; she found it near the outside fireplace; the stub had been left by the accused inside the house; she had previously seen the stick before the assault of the deceased when the accused was standing at the door of her house.
The witness was also questioned about the relationship of the deceased and the accused.
She told the court, that, the relationship between the two had developed into acrimony of late when she saw the accused denying the deceased food, and, on the other occasion, assaulted her.
The witness had since left the parental homestead and gone to stay with an aunt in Chegutu.
She concluded her cross examination answers by stating, that, from the first fall to the point where she finally collapsed without being able to rise again, was a short distance.
The State then called Godfrey Matiza as a witness.
He is the young brother to the deceased's father. On the fateful day, he was at his homestead, 40-50 metres away from the scene of the alleged assault, where he was shelling maize. He later saw the deceased coming towards his homestead crying. He remonstrated her against unexplained crying and asked her why she was crying; she did not tell him.
He observed her walking with one hand holding her head on the left hand side, he saw her walking for a short distance and fell, he was at a distance of 4-5 metres from where the deceased was.
He later heard the accused ordering the deceased to go and drive some cattle which were about to go into a nearby maize crop field; as she moved towards that field, she fell again.
She placed the water containers down and staggered going towards where the cattle were. She called the name of the lead ox three times; after the call, she fell again.
At that stage, the accused walked through a pathway which has stones or rocks on either side going to where the deceased was lying.
The witness confirmed that there are sparsely distributed stones around the area, but, stated that the deceased fell headlong, and, at the place she fell for the second time, the area is grassy; the second place of fall was 6 metres away from the first place she had fallen.
He observed the accused lifting the deceased and taking her to the house. She placed the deceased at a place where the accused normally conducted her prayers and the accused started praying.
When the witness finally followed the accused to the latter's homestead, he found the deceased lying but observed drool oozing from the deceased's mouth and nostrils.
The witness assisted the deceased's father to look for transport to ferry the deceased to Mutambara Hospital. He further told the court that he noted a fresh wound close to the deceased's rib cage area when the father was changing her clothes in preparation to take the deceased to the hospital.
To the witness, the relationship between the deceased and the accused was cordial.
Under cross-examination, he told the court, that, because of the distance between his brother's and his homestead, he did perceive the deceased screaming. When the deceased approached the witness's homestead, he saw Gracious standing by the wreck built for plates, outside the house.
Although the witness confirmed that where the deceased fell there is a stony surface, he did not see the deceased's head hitting the ground, nor, upon observing her, did he discern any visible injuries on the head.
He did not ask the accused whether she had assaulted the deceased; he only got the information from Gracious.
He identified the stick and handed it to the police.
The State then called Joseph Matiza, the deceased's father.
The relationship between the deceased and the accused used to be very cordial, but, as time moved on it became unfriendly.
On the day in question, he recalled being summoned by the accused, through the deceased, who was sent to call the father who was at the garden. Upon arriving at the homestead, he was told by the accused that the deceased had caused his son Leon to fall. The accused did not know what the deceased had done to her son, Leon.
After the briefing, the witness went back to the garden; barely had he settled at the garden did the witness hear the deceased crying; he called out to the accused to establish what had caused the deceased to scream; he did not get a response from the accused; the witness resolved to go back to the homestead to find out.
He found Gracious standing near the wreck for the plates and observed the accused giving orders to the deceased to drive away the beasts. He then saw the accused carrying the deceased in her arms. He asked the accused as to what had happened to the deceased and the accused told him that she knew nothing that could have happened to the deceased that led to the condition the deceased was then in.
At the time the deceased was handed over to the witness, her blouse was unravelled; it exposed a fresh injury just below her abdomen, above the hip. The witness asked the accused whether she had not done anything to the deceased but she told him that she has not done anything to her.
He kept on asking the accused that question because earlier on the accused had told him what the deceased had done to Leon.
He was asked to describe the terrain where the deceased fell and he told the court, that, from his homestead going towards Godfrey Matiza's place, there is a lawn surface, but, on another side, there are some gravel or stones or erosion brought about by cyclone Idai.
Under cross-examination by defence counsel, the witness stated, that, from the date he took the deceased to hospital he was seeing the accused after a long period of time. After the death of his daughter, he asked the accused to go and stay with her parents.
He was asked about the injury he saw on the body of the deceased; he remained adamant that he saw it.
Before he left the garden for the second time, he heard the deceased crying; from a distance, he saw her coming out of the house/hut, stood between two huts where there was a wreck; and, when he returned to the homestead, he was surprised to see her emaciated compared to the condition she had been.
Before the alleged assault, the deceased was healthy.
The State then called Assistant Inspector Herbert Chari.
His evidence is that the place where the deceased stayed is stony; there are both big and small stones. Under cross-examination, he stated that he saw the place where the deceased fell; if one hits against such surface one may sustain injuries. However, the place where the deceased finally fell was patchy grass. The stick allegedly used to assault the now deceased was given to the police by Gracious.
The State then called Constable Tinashe Chikomo, the investigating officer in this matter.
He drew the sketch plan which was produced by consent and marked exhibit number 2. He also produced the stub, exhibit number 3, the certificate of weight, exhibit number 4. He confirmed that the scene of the crime is rocky. The rest of his evidence is what he heard from State witnesses.
The last witness to be called by the State was Dr Blessing Zamba, a medical doctor.
He was called specifically to assist the court in explaining the medical terms of the postmortem.
The post mortem showed that there were no visible wounds or injuries. The skull indicated that there were no fractures, but, the left side of the brain showed that there was significant internal bleeding; there was clotted blood on the left side covering the entire side of the left side; the brain was swollen; the lungs were congested because of the nature of the injuries on the head; the head was hit against a hard object resulting in severe brain oedema.
For one to sustain that injury, severe force could have been used.
The post-mortem report was produced as exhibit number 5.
Under cross examination, the doctor was asked if the stick, exhibit 3, could have caused the injuries - he answered in the affirmative.
He further explained, that, depending on the degree of force used by the assailant, and also the vulnerability of the victim, yes, the stub could have caused such an injury on the head.
The haematoma was located on the left hand side of the head and a blunt object cannot be ruled out. He added, that, if a skull could have hit on a sharp edged stone, that sharp object could have ruptured the skull.
After the evidence of the medical doctor, the State closed its case....,.
The accused adopted her Defence Outline, confirmed warned and cautioned statement to form the basis of her defence.
She denies assaulting the deceased in any way.
She admitted most of the State witnesses evidence from the falling of Leon; her summoning of the husband from the garden; the return of the husband from the garden; the presence of Gracious Matiza at the scene; the sending of the deceased to fetch water; the order to drive the cattle; and the falling of the deceased on four occasions.
What she disputes is the assaulting of the deceased and the knowledge of the stick allegedly used on the date in question to assault the deceased.
The accused did not put a spirited challenge to the evidence that the deceased emerged from the house where she was crying and was seen by Godfrey Matiza crying.
The accused's counsel never challenged this crucial piece of evidence, the question that remains to be probed is: why was the deceased crying?
The next question for this court to decide is whether the accused assaulted the deceased leading to the injuries that ultimately caused the deceased's death?...,.
WHETHER ACCUSED ASSAULTED THE DECEASED
Joseph Matiza, the deceased's biological father, during his testimony, provided very essential information that explains the reaction of the accused.
On that day, the accused threatened to assault Leon with a stick. Leon ran towards the deceased, presumably seeking refuge or protection; the deceased evaded Leon's thrust and fell. The accused was not happy about the conduct of the deceased. She sent the deceased to go and call Joseph, the father, who was attending to his garden. Joseph heeded and went back to the homestead. He was told about the fall of Leon due to the conduct of the deceased. Joseph did not reprimand the deceased or comment on that. He went back to the garden.
After a while, Joseph Matiza heard the deceased screaming from the direction of the homestead. He immediately went back to find out the cause of the crying. He tried to call out the accused's name to find out what was happening but he did not get a response.
Upon arrival at the homestead, he observed Gracious Matiza standing at the wreck for plates. He then saw the accused carrying the deceased in her arms.
From the foregoing chronicle of events, we conclude, that, the accused was incensed by the fall of Leon, and, to her, the deceased had caused the accused's son to fall. When she saw that the father had not punished the deceased, she decided to punish the deceased by assaulting her.
Gracious Matiza, though of a tender age of eleven years, appeared extraordinarily calm to a rigorous cross-examination by the defence, but, she did not shake or prevaricate nor contradict herself. Her story is very clear:
Upon her return from where she had been sent by the accused, she saw the accused calling the deceased into the house. The accused was holding a stub in her hand. The deceased entered the house, and, immediately thereafter, Gracious Matiza heard the sound of beating, contemporaneously the deceased screamed and the accused was telling her to keep quiet.
Later, Gracious saw the deceased emerging from the house holding her head and back part of her waist crying.
The deceased was sent to go and fetch water. She obliged, albeit in pain, and still crying.
Gracious Matiza saw her falling on four occasions; the four occasions relating to the deceased's fall are confirmed by the accused in her Defence Outline.
At the time the deceased was sent to go and fetch water, she was weak, and, at one occasion, staggered after the first fall.
The defence contend, that, there was conflicting evidence on the part of the State witnesses; but, the accused seem to agree unreservedly on what transpired from the time the deceased left her (accused's) house after the assault.
The court is conscious to the fact, that, there is a single witness pertaining to what transpired at the house where the deceased was assaulted.
In the matter of David Worswick v the State SC27-88 the then Learned Chief Justice DUMBUTSHENA held that:
“Whenever the court considers and assesses the evidence of a single witness, its first duty is to examine his evidence critically. In this regard, it is salutary to pay attention to what DIEMONT JA, said in S v Sauls and Ors 1981 (3) SA 172 (AD) at 180E-G:
'There is no rule of thumb, test, or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider its merits and demerits, and, having done so, will decide whether its trustworthy, and whether, despite the fact that there are shortcomings or defects or contradiction in the testimony, he is satisfied that the truth has been told.
The cautionary rule referred to by DE VILLIERS JP in 1932 may be a guide to a right decision, but, it does not mean 'the appeal must succeed if any criticism, however slender, of the witnesses evidence were well founded' (per SCHREINER JA in R v Nhlapo AD 10 November 1952, quoted in R v Bellingham 1955 (2) SA 566 (A) at 569); it has been said, more than once, that, the exercise of caution must not be allowed to displace the exercise of common sense.'”
In the matter of SFW Group & Anor v Martel & Another 2003 (1) SA 11 (SCA) the technique generally employed by these courts, in factual disputes where there are two irreconcilable versions on the evidence, may be summarised as follows:
“To come to a conclusion on the disputed issues, a court must make findings on:
(a) The credibility of the witnesses. This depends on the court's impression, which, in turn, depends on a variety of subsidiary factors, such as -
(i) The witness candour and demeanour in the witness box;
(ii) His bias, latent and blatant;
(iii) Internal contradictions in his evidence;
(iv) External contradictions with what was pleaded or put on his behalf or with established fact or with his own extra-curial statements or actions;
(v) The probability or improbability of particular aspects of his version; and
(vi) The calibre and cogency of his performance compared to that of other witnesses testimony about the same incident or events.
(b) The reliability of the witnesses: this depends, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on -
(i) The opportunities the witness concerned had to experience or observe the event in question; and
(ii) The quality, integrity, and independence of his recall thereof.
(c) The probabilities: this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues.
In the light of its assessment of (a), (b) and (c), the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.
The hard case presumably rarely occurs when a court's credibility findings compel it in one direction and its evaluation of general probabilities in another. The more convincing the credibility findings the less convincing will be the evaluation of general probabilities. But, when all factors are equipoised, probabilities prevail.”
No one saw the accused assaulting the deceased, and, as such, the court has to rely on circumstantial evidence in this matter.
In the matter S v Reddy and Others 1996 (2) SACR 1 (A) the South African Appeal Court outlines the proper approach in circumstantial evidence as follows:
“In assessing circumstantial evidence, one needs to be careful not to approach it upon a piecemeal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true.
It is only then that one can apply the oft quoted dictum in R v Blom 1939 AD 188 at 202-3 where reference is made to two cardinal rules of logic: firstly, that the inference sought to be drawn must be consistent with all the proved facts; and, secondly, that the proved facts should be such that they exclude every reasonable inference from them, save the one sought to be drawn.
The fact that a number of inferences can be drawn, from a certain fact taken in isolation, does not mean that in every case, the State, in order to discharge the onus which rests upon it, is obliged to indulge in conjecture and find an answer to every possible inference that ingenuity may suggest any more than the court is called on to seek speculative explanations for conduct which, on the face of it, is incriminating.”
Having considered the facts and the law in this case, we have come to the conclusion, that, the accused's version, that the deceased sustained the injuries after falling on a stony area is improbable and not proved at all.
The mere presence of the rocky or stony surface does not necessarily mean that the deceased fell on the stone and got injured.
The deceased was assaulted by the accused, and, when she fell, she had been already injured in the head. The injuries detected by the pathologist were caused by the accused who assaulted the deceased on the head and back.
The accused's intention was to chastise the deceased. She however exerted great force in so doing.
We are unable to find the accused guilty of murder in these circumstances. The accused negligently caused the death of Merjury Matiza; she failed to realize, that, by assaulting the deceased on the head, using a blunt object, could result in her death.
Accordingly, the accused is found guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], Culpable Homicide, and Not Guilty of Murder.
