The appellant appeared before a Mvurwi magistrate facing a theft of trust property charge in terms of section 113 of the Criminal Law (Codification and Reform Act) [Chapter 9:23].

The State allegations were that the appellant received US$2,440= from his employer for purposes of paying wages for contract workers at Tel One Mvurwi Depot. Instead of handing over the money to the intended beneficiaries, the appellant converted the money to his own use. The appellant was convicted and fined US$300= or 6 months imprisonment.

Aggrieved by the conviction, the appellant appeals against both conviction and sentence. His grounds of appeal are as follows:-

“AD CONVICTION

Appellant argues that the court a quo erred or misdirected itself in one or more of the following ways:-

1. Whether or not the court a quo heavily relied on unsafe evidence which did not point to the guilt of the appellant.

2. Whether or not the court a quo relied on flouting of workplace procedures by the appellant as evidence of theft, the charge alleged by the State.

AD SENTENCE

1. Whether the court a quo imposed a disproportionate and stiffer penalty without regard to the accused's personal circumstances, mitigation and contrition.”…,.

Notwithstanding that the grounds of appeal are a nullity we would still dismiss the appeal on the merits for the following reasons;

Counsel for the respondent supported both the conviction and sentence. The appellant's counsel submitted that it was illogical for the court to conclude that the appellant stole the money when there is someone else who had keys to where the money was left and there is evidence that he entered that room searching for pins. That the inference drawn by the learned trial court was not consistent with all proved facts.

The trial magistrate convicted the appellant after finding that the appellant failed to follow procedures and that his design was to steal the money. That he failed to give the money to his assistant or put the money in a lockable cabinet, and, instead, put it in an unlocked drawer. That he failed to make a report and only did so on Thursday after being prodded to report by his co-accused.

The trial magistrate found that the only reasonable inference to be drawn is that the appellant misappropriated the money. That the possibility that anyone else, other than the accused, stole the money is very remote. That his conduct, when he received the money and upon discovery of the theft shows that he stole the money. The trial court convicted the appellant on the basis of circumstantial evidence and drew the inference that he stole the money. The trial court considered and had regard to all the circumstances of the case as well as his explanation for failure to secure the money and to report the theft soon after discovering the offence before coming to the conclusion it did.

What this court is being called upon to decide is whether the inference drawn by the court a quo was the only reasonable inference to be drawn from the proven facts.

It is trite that where a judicial officer convicts an offender on the basis of a finding of circumstantial evidence, there must not be other co-existing circumstances which would weaken or destroy the inference sought to be drawn. The inference drawn must be the only reasonable inference that can be drawn from the proved set of circumstances.

See S v Marange and Ors 1991 (1) ZLR 244; S v Hartlebury and Anor 1985 (1) ZLR (HC); S v Machakasa SC106-89 for that approach.

The court is required to have regard to all the facts and the probabilities of the matter and as WOODERMEYER JA, in R v Blom 1939 AD 188…, put it;

“In reasoning by inference, there are two cardinal rules of logic which cannot be ignored:-

(i) The inference sought to be drawn must be consistent with all the proved facts. If it is not the inference cannot be drawn.

(ii) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

The appellant gave his own account of the events leading to the loss of the money.

Whilst there is no onus on an appellant to show his innocence, the court was still required to be satisfied that his explanation was improbable and that his explanation was false. As put in R v Difford 1937 AD 370…,.;

“…,. No onus rests on the accused to convince the court of the truth of any explanation which he gives. If that explanation is probable, the court is not entitled to convict unless satisfied not only that the explanation is improbable, but that, beyond any reasonable doubt, it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

See also R v N 1946 AD 1023.

The learned trial magistrate considered both the State version and the appellant's explanation. The court considered, cumulatively, all the evidence available. There is sufficient evidence on record to support the conviction.

The appellant violated the standing procedures for securing money. He kept money in a drawer instead of a locker in his office. He gave the keys to another person and failed to tell him that there was some money in the drawer. He went away for four days without paying the wages when he was required to ask his second in charge to take over the assignment if he could not perform it himself. He was aware that the contract workers required to be paid before the holiday break. Upon his return, he spent a day without asking for the keys and his explanation is that the person with the keys did not have them close by. When he subsequently entered the office, at 8am, he says that he did not notice that the money was missing until three hours later. After discovering that the money was missing, the appellant did not make an immediate report. He did not inform his second in charge of the theft and yet he had a meeting with him the same day. His explanation is that he had not decided to tell him. When asked, in cross examination, why he did not later phone him, he gave no response. He failed to report until he was prodded by a colleague to report the theft. He failed to report the theft the same day only to report the next day. His explanation that he did not phone him because he had not decided to tell him shows that he had something to hide. The appellant's explanation for failing to secure the money and to report the theft on time is improbable, fanciful and unreasonable. The only reasonable inference that can be drawn is that he stole the money. His conduct is not consistent with a person who had had money stolen from him but someone who stole the money and had something to hide. The trial court cannot be faulted for the approach it adopted.

Having found no misdirection on the part of the trial court, this court finds no basis for interfering with the lower court's findings. As remarked by KORSAH J in S v Masawi and Anor 1996 (2) ZLR 472 (S) commenting on the findings of a lower court;

“If these findings have support in the facts established and in reasonable inferences, they are conclusive on appeal. After conviction, a verdict will not be set aside unless the record clearly shows that upon no hypothesis whatsoever is there substantial evidence to support it.”

It is indeed true that the applicants face serious charges.,. The applicants who face serious charges remain innocent until proven guilty. A plethora of cases emphasize the principle that the seriousness of an offence alone should not be used to deny a person bail.

Counsel for the accused argued that the State is relying on circumstantial evidence as there was no witness except the accused.

He is, to a certain extent, correct that there was no witness.

There is, however, clear evidence linking the accused by his relevant confession, and a detailed description of how the deceased met his death. In addition, the accused's conduct after the murder, that is, wrapping the body and burying it – alone - adds to the accused's actual intent. As if this was not enough, the accused did not report to anyone, but went into hiding for three years until he ran out of luck and was arrested in Beitbridge border town.

It was the witness testimony that Michael Peter Hitschmann pointed out the information that she printed out from the laptop.

Relying heavily on that testimony counsel for the State argued, rather forcefully, and convincingly, that where there is an improperly extracted confession it becomes inadmissible, but if the same witness points out evidence that is verifiable outside the confession, such evidence is admissible.

That proposition of law finds expression under section 258 as read with section 281(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides as follows -

“258

(1) It shall be lawful to admit evidence of any fact otherwise admissible in evidence notwithstanding that such fact has not been discovered and come to the knowledge of the witness who gives evidence respecting it only in consequence of information given by the person under trial in any confession or statement which, by law, is admissible in evidence against him on such trial, and notwithstanding that the fact has been discovered and come to the knowledge of the witness against the wish or will of the accused.

(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing  was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which, by law, is not admissible against him on such trial.”

“281

(3) Where it is alleged that two or more persons are involved in the same offence, any statement that is admissible  in evidence in terms of subsection(2) against one such person in respect of such offence shall be admissible in evidence against the other such person or persons.”

There is no direct evidence which links the accused to the commission of any of the offences. The evidence proffered by the State which tends to link the accused to the commission of the alleged offences is, to a large extent, circumstantial. The evidence comprises -

(a) Michael Peter Hitschmann's warned and cautioned statements and indications.

(b) Michael Peter Hitschmann's viva voce evidence in court.

(c) Michael Peter Hitschmann's bank account in Manica, Mozambique.

(d) Michael Peter Hitschmann's laptop computer.

Jane Chimusanga's evidence was on her finding blood stained bricks, a stone, a glove and metal bars in the kitchen.

The fact that these items were blood stained is not in dispute. The accused's explanation is that these things were being kept in the kitchen and got blood-stained when the deceased fell headlong onto the bricks.

Dr Dhlakama and Jane Chimusanga's evidence is circumstantial.

The accused faces two counts of murder and one (1) count of attempted murder in breach of section 47 of the Criminal Law Code [Chapter 9:23].

The allegations against the accused are that on 3 July 2009, he went to the residential premises of Evans Vaughan Robert Henry (deceased 1), who was 76 years old,…, namely, No.7 Simpson Road, Gweru East, at about 2200 hours where he gained entry through the main entrance which was not locked.

Once inside, the accused is alleged to have hidden in the spare bedroom when he realised that Evans Vaughan Robert Henry was awake. When Evans Vaughan Robert Henry left his bedroom, the accused is alleged to have taken advantage to enter the bedroom where he how hid himself inside a fitted wardrobe. Upon Evans Vaughan Robert Henry's return, the accused is alleged to have attacked him with an unknown object striking him on the head thereby inflicting the fatal injuries.

The State alleges that after accounting for Evans Vaughan Robert Henry, the accused then went for his wife, Valerie, who was sleeping in a different bedroom and struck her on the head with an unknown object rendering her unconscious.

The accused is alleged to have ransacked the house, stealing property which included 1 black supersonic radio, brass charcoal iron, a candle holder, an FN pistol, a pair of binoculars, R100= and some groceries. He then made good his escape.

It is further alleged that some twelve (12) days later, on 15 July 2009, the accused proceeded to the residential premises of Raymond Peter Rensburg (deceased 2)…, namely, Plot 9 Umsungwe Road, Harben Park, Gweru, where, upon arrival, he cut the fence in order to gain entry. Once inside the yard, the accused is alleged to have broken the kitchen window to gain entry into the house.

It is alleged that the accused then proceeded to the bedroom where Raymond Peter Rensburg, then aged 67, was sleeping and attacked him striking him on the head with an unknown object resulting in his death. Having killed Raymond Peter Rensburg, the accused is alleged to have ransacked the house before making off, unnoticed, with US$1,000=, R3,000=, a gold necklace, a nokia 1202 cellphone handset, one pair of male black shoes, one blue monarch suitcase and some groceries.

It was not until September 2009 that the accused was arrested after his wife, Irene Moyo, had let the cat out upon making a report of domestic violence to the police. When the police raided his home, in broad daylight, at about 1500 hours, they found the accused sleeping. Upon his arrest, the police recovered an FN pistol in between the mattress and base of the bed on which the accused was sleeping. A pair of binoculars was recovered in a push tray in the same room. These two items had been stolen from the premises of Evans Vaughan Robert Henry after he was killed.

More property, including a Nokia cellphone and a black supersonic radio, was recovered. These had been stolen from the premises of Raymond Peter Rensburg and Evans Vaughan Robert Henry, respectively, and were recovered following indications made by the accused person.

This is a case in which there is no direct evidence of the commission of the crime as nobody witnessed the killings and the attempt. It is therefore a matter that has to be decided on circumstantial evidence.

The law relating to circumstantial evidence can be found in HOFFMAN and ZEFFERTT, The South African Law of Evidence, 4^th ed…, where the learned authors stated:

“In R v Blom 1939 AD 288 at 202, 203 WATERMEYER JA referred to 'two cardinal rules of logic' which governed the use of circumstantial evidence in a criminal trial:

'(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.'”

The question which then arises is whether it can be said that the only inference to be drawn from the proved facts is that the accused did commit the offences in Counts 1, 2, and 3?

The proved facts are as follows:

Counts One and Two

(1) On 3 July 2009, at 2200 hours, someone broke into the premises of Evans Vaughan Robert Henry and battered him on the head causing his death.

(2) At the same time, the same perpetrator or someone working in league with him or her, proceeded to where Evans Vaughan Robert Henry's wife, Valerie, aged 80, was sleeping in a separate bedroom, and battered her head, no doubt intending to cause her death. Fortunately, she did not die but was rendered unconscious. She did not live long as she died of heart failure on 8 August 2010, bearly a year later.

(3) After the two attacks, the perpetrator ransacked the house stealing property, including an FN Pistol, a pair of binoculars and a black supersonic radio.

(4) These three items of property were recovered following the arrest of the accused with the FN Pistol found hidden under the accused's mattress and the binoculars displayed in his push tray at the accused's residence. The supersonic radio was recovered from Harrison Moyo who had purchased it for US$15=, in July 2009, soon after the killing, from the accused.

(5) Clearly, the person who attacked Evans Vaughan Robert Henry and his wife intended to incapacitate them in order to facilitate a robbery. The killing was in the course of a robbery and so was the attack on Valerie.

(6) The accused's wife also reported a case that the accused was spending nights away from home coming home in the morning with stolen property. Indeed, when he was raided during the day, he was found fast asleep.

Can it be said that there is another inference to be drawn from these facts other than that the accused is the one who killed Evans Vaughan Robert Henry, attacked Valerie, and stole their property?

I do not think so.

This is particularly so because the accused's own testimony was a tissue of lies and nothing whatsoever can be gained from it. So hopeless was he as a witness that at the end nothing was left of his defence which is rejected in its entirety.

In my view, the only inference to be drawn from the proved facts is that the accused was the perpetrator of the robbery, the killing and the attempt in Counts 1 and 2.

Count 3

In Count 3, the proven facts are the following:

(1) On 15 July 2009, at 2200 hours, someone broke into the premises of Raymond Peter Rensburg, who was 67 years old, and battered him on the head as he slept causing his death.

(2) After the attack, the perpetrator ransacked the house and stole property which included a nokia cellphone belonging to his wife Marina.

(3) The said nokia cellphone was sold by the accused to Jetro Moyo for $30= in August 2009 a few weeks after the killing. It was recovered on 21 September 2009 following indications made by the accused person.

(4) In this case, therefore, the person who attacked Raymond Peter Rensburg intended to incapacitate him in order to facilitate a robbery. The killing was therefore in the course of a robbery.

Again, the question whether there is another inference to be drawn from the proved facts other than the fact that it is the accused who perpetrated the killing can only be answered in the negative.

The two accused persons are facing a charge of murder; the allegations being that on 24 June 2009, they wrongfully, unlawfully and intentionally killed David Mpofu, a male adult then aged 38.

It is alleged that the deceased, who resided at 59 Circular Drive Burnside, Bulawayo gave a lift to the two accused persons and their colleague, who is still at large, in his Toyota Sprinter motor vehicle, silver in colour, registration number 801-918Z, at the intersection of 12^th Avenue and Herbert Chitepo Street in Bulawayo. They purported to be going to Magwegwe suburb. Upon arrival at the intersection of Hyde Park Road and Masiyephambili Drive, next to Pelandaba Cemetery, one of the accused persons used a string to strangle the deceased after which he was dragged from the driver's seat. It is alleged that Accused 1 took over the wheel and drove the deceased's vehicle to Luveve Cemetery where the accused persons dumped the body of the deceased in a bush next to the cemetery. They allegedly drove away the deceased's Toyota Sprinter motor vehicle.

The two accused persons pleaded not guilty to the charge of murder….,.

It is proposed to deal first with that evidence which was admitted.

The evidence of Nokuthula Dube is to the effect that she is the wife of the deceased. On 24 June 2009, at about 1900 hours, the deceased left home intending to buy some groceries in town. He was driving his Toyota Sprinter motor vehicle, registration number 810-918Z. When the deceased left home he had in his possession a Nokia 3310 cellphone, about R500= and P150= which items were not recovered. The deceased never returned home and it was not until 29 June 2009 that the police advised the witness that her husband was dead and his body was at Mpilo Hospital Mortuary. On 16 July 2009, the witness was invited by the police to identify the deceased's Toyota Sprinter vehicle which had been recovered and she did that. In that vehicle was the deceased's driver's licence and I.D. document.

Butholezwe Sibindi, who resides at 3379 Magwegwe North, Bulawayo was a security guard at Dangale Koloi Car Park. He was on guard duties on 24 June 2009 when, at midnight, two men came driving a Toyota Sprinter motor vehicle registration number 801-918Z. The driver introduced himself as P. Dhliwayo and they paid the requisite parking fee and left the vehicle for safekeeping. They never returned for it until several weeks later he reported this to his employer who called the police and they took the vehicle away on 16 July 2009.

Dingilizwe Mlilo, of Block 3/108 Mpopoma, Bulawayo is employed by Bulawayo City Council as a security guard at Luveve Cemetery. He is the one who alerted the authorities about the body of the decased on the morning of 25 June 2009. This witness attended the scene with the police and observed that there were tyre marks signifying that a vehicle had made a U-turn next to where the deceased's body was. He observed that the body had been dragged from the road before it was dumped.

Police officer, Misheck Katoma, stationed at Luveve police station, attended the scene where the deceased's body had been dumped on 25 June 2009. Together with two other colleagues they ferried the deceased's body to Mpilo Hospital. It was certified dead by Dr Lylian Ncube. The deceased's friend, Charlton Tshabangu, of 520 Nkulumane, Bulawayo, is the one who identified the deceased's body at Mpilo Hospital Mortuary on 29 June 2009 before notifying his wife and giving the deceased's particulars to the police….,.

The admitted evidence establishes the following:

(a) On 24 June 2009, the deceased left his home driving his silver Toyota Sprinter motor vehicle at about 1900 hours.

(b) He had in his possession a cellphone and some money.

(c) He never returned home but was murdered by strangulation that same night and his body was dumped in a bush next to Luveve Cemetery. He was robbed of his vehicle, cellphone, and money.

(d) His motor vehicle was later dumped at Dangalekoloi Car Park in Luveve by two men and was only recovered on 16 July 2009 as those who dumped it never returned for it.

(e) After the two accused persons were arrested, an identification parade of twelve (12) people was conducted at Bulawayo Central station where the witness, Nkosilathi Sibanda, picked out the two accused persons as the people who had robbed him on the night of 24 June 2009….,.

The State also led evidence from two more witnesses, namely, Nkosilathi Sibanda and Detective Assistant Inspector George Zuze.

Nkosilathi Sibanda is a reporter employed by Umthunywa Newspaper and resides at 129 Emakhandeni Bulawayo. On 24 June 2009, at about 2100 hours, he was proceeding home when he boarded a lift at West End garage in 6^th Avenue, Bulawayo. Another man boarded with him and the two sat at the back seat of the vehicle, which was a Toyota Sprinter, silver in colour. Inside the vehicle were two men, the driver and a passenger sitting next to the driver in front.

The courtesy light inside the vehicle was illuminated, and it remained so until he alighted from the vehicle. That way he was able to see the occupants of the vehicle properly.

When they got to Njube turn off, the passenger who had boarded with him alighted leaving him and the two men in the vehicle. As they approached his destination, at Magetsini, Nkosilathi Sibanda informed the driver that he was dropping off at the bus stop. He was ignored. Instead, the driver pressed the central lock button and locked all the doors. The vehicle turned right at Luveve Road and Masiyephambili turn off and drove towards Victoria Falls Road with the witness pleading with the occupants to drop him - to no avail. When they got to Emakhandeni Hall, the witness says he pleaded again asking to be dropped off but the driver, who he says was Accused 1, swore to him saying he was in the habit of boarding people's cars. When they got to the flyover bridge on that road, the second man, who he identified as Accused 2, commanded him to draw closer to him, got hold of his jacket collar and struck him with a fist on the right eye. The Accused 2 then started stripping him of his clothes. The vehicle made a U-turn at the “Ngozi Mine” dumping site and was parked next to the road whereupon Accused 1 started searching the witness's jacket pockets. He was abandoned at that point naked, except for his inner short, before his assailants sped off in the Toyota Sprinter motor vehicle. He found his way back home and later made a report at Entumbane police station.

Much later, when the police came looking for him at his home, he was taken to Central Police Station where he identified his pair of jeans and new balance trainers which had been recovered in the Toyota Sprinter.

At a later stage, he was invited by the police to identify his assailants in an identification parade of ten (10) or more people. The police told him they had picked up “some guys” and wanted him to have a look at them and see if his assailants were present. He assured the police that he had had a good look at the two assailants and was sure he could identify them if he saw them again.

Nkosilathi Sibanda told the court that he had not seen the suspects prior to the parade and had not seen the parade being assembled. He stated that the police did not point out any of the suspects. He, however, stated that the ten (10) or so participants were not of similar build and were dressed differently. The witness says he was able to quickly pick out Accused 2 as the person who had been sitting next to the driver and had assaulted him while holding him by the collar. This was because the sight of his face, which was light in complexion, was smallish with a side beard, and his bald head had remained indelibly etched in his memory. He also managed to pick out Accused 1 as the person who had been the driver. He was assisted by his clear recollection of his build which was bigger with broad shoulders which he remembered clearly from the way he stirred the vehicle when turning. He also vividly remembered his face with wider cheek bones. He stated that he had had a good look at his assailants during the ordeal as he had spent considerable time talking to them in the vehicle.

Detective Assistant Inspector George Zuze is the Investigating Officer in this case with 17 years experience in his job.

In the course of his investigations, he says he interviewed Nokuthula Dube, the deceased's wife, who had told him that when the deceased left on the fateful night, he had in his possession, among other things, his cellphone. The officer then took down the cellphone number which he used to obtain the call history from the cellphone service provider. When he did, he noted that at about midnight on the night in question a call had been made to a landline in Gwabalanda from the deceased's cellphone. From another service provider he was able to obtain the address where the call was made to. He and other officers then raided that house on the night of 10 September 2009.

He said they interviewed the occupant, Gerald Sibanda, who turned out to be a prophet. Gerald Sibanda confirmed that on the night of 24 June 2009 he had indeed received a call from a client of his he recalled as Moyo who stays in Cowdray Park and that the said Moyo had wanted spiritual assistance. The prophet led the police to No.150 Cowdray Park, Bulawayo; the residence of Accused 1, whom they found with his wife in the early hours of the morning. Accused 1 also confirmed that he knew the prophet, Gerald Sibanda, as they go to the same church.

Accused 1 was then arrested.

The witness went on to say that at Accused 1's home they saw a Ford Laser motor vehicle, red in colour, which was a non-runner and appeared to had been off the road for a while.

He stated that when Accused 1 was cautioned, he immediately admitted involvement in the killing of the deceased and implicated Accused 2 as having been with him when the crime was committed.  This led to the arrest of Accused 2, who, by that time, was detained at Bulawayo Prison on another charge; he having been detained on 8 July 2009 after killing the deceased. He produced the prison record, exhibit 7, to that effect. Detective Assistant Inspector George Zuze said Accused 1 freely and voluntarily led a team of detectives for indications and he recused himself as the Investigating Officer.

After the arrest of Accused 2, the witness administered a caution upon him and he also volunteered to go and show officers the scene of crime. The team of officers was put together and went for indications with Accused 2.

As there were other witnesses, arrangements were made for them to participate in an identification parade. Most witnesses failed to pick out the accused persons except for Nkosilathi Sibanda who identified them in the parade as having been the people who robbed him while driving a silver Toyota Sprinter….,.

The accused persons also gave evidence.

Accused 1 stated, in essence, that he knows nothing about the offence but was linked to the offence because of a cellphone, a Nokia 1600, which he had been given by unnamed individuals he had given a lift while pirating on “a certain day” he did not specify. It had been given to him in lieu of the fare and he was to hold onto it as the unnamed owners would phone him on that number to give him his money and recover their phone. While still in possession of that phone, he had taken advantage to make a phone call to one Shepherd. At a subsequent date, he had returned the phone to the owners and collected the pirate taxi fare. While admitting having telephoned Prophet Gerald Sibanda, whom he says he knew as “Mdawini”, he denied having phoned him on the night of 24 June 2009 and denied that the prophet has a landline. Accused 1 stated that the police had been led to his residence by three fellow-worshippers of his leading to his arrest. He stated that they had assaulted him to admit to about 22 counts of robbery and carjacking and to the killing in the present case. Although he had led the police to the people who had given him the phone, he was surprised when one of the officers started calling them by name before firing shots into the air forcing that group of people to flee. He said the police had then turned on him and using threats and violence, they forced him to confess to the killing of the deceased. He could not mention the duress during confirmation proceedings because he was still afraid of the police officers some of whom had remained in the courtroom.

Unfortunately for Accused 1, the story is incoherent and does not make any sense at all. The cellphone stolen from the deceased was a Nokia 3310 and not a Nokia 1600. The deceased's cellphone was used to call Prophet Gerald Sibanda, after he had been killed, on a landline in Gwabalanda. If he says he did not call Gerald Sibanda on the phone he had got from his customers but phoned Shepherd, then it must follow that it is not the deceased's phone which was used to phone Shepherd. All this does not explain that the deceased's phone was used to phone Prophet Gerald Sibanda, who, in turn, told the police that he had been called by Accused 1 for spiritual assistance. This is the evidence we have already accepted and it links Accused 1 to the commission of the offence.

Accused 2 stated in his evidence that he does not know where he was on the night of 24 June 2009.  He said that while in prison in September 2009 he was approached by the police who told him he was facing several charges of carjacking and robbery. They took him to Central Police station where charges were preferred against him after which he was assaulted to force him to confess. He did not sustain any injuries as a result of the assault but was able to get medication in prison. Accused 2 said that his warned and cautioned statement was given under duress. Under cross- examination, he said the police took him for indications saying they would just take him to where Accused 1 had led them. Accused 2 had a difficult time explaining why he had raised an alibi in his Defence Outline that at the time the offence was committed he was in prison. This was after his alibi had been busted when Detective Assistant Inspector Zuze produced the prison register showing he had only been detained on 8 July 2009. In the end he could not give any explanation for this disparity….,.

This is a case where there is no direct evidence linking the accused persons to the commission of the offence. It is a case where there are bits of evidence strewn all over the place and it remains for us to piece it together and see if, circumstantially, it leads to a conclusion of guilt or otherwise.

The law relating to circumstantial evidence is found in HOFFMAN and ZEFFERTT, The South African Law of Evidence, 4^th ed…., where it is stated:

“In R v Blom 1939 AD 288 at 202, 203 WATERMEYER JA referred to 'two cardinal rules of logic' which governed the use of circumstantial evidence in a criminal trial;

'(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct'.”

That passage was cited with approval in S v Vhera 2003 (1) ZLR 668 (H)…, and more recently in S v Dzira HB149-11…,.

The question is; can it be said that the only inference to be drawn from the proved facts is that the accused persons did commit the offence?

The facts proved from the evidence of the two State witnesses (note that we have already set out those proved from the admitted evidence), are that:

(a) Certain two people driving a silver Toyota Sprinter gave a lift to Nkosilathi Sibanda at West End garare and later forcibly took him to “Ngozi Mine” where they robbed him of his clothing and cellphone;

(b) During Nkosilathi Sibanda's ordeal in the Toyota Sprinter, the courtesy light was on giving sufficient lighting for him to have a good look at those two people and he spent a considerable time with them during which one of them drew him closer by the collar and punched him in the face.

(c) Nkosilathi Sibanda's jeans and trainers were recovered in the Toyota Sprinter which belonged to the deceased.

(d) The deceased's cellphone line, which had been taken from him after he was killed, was used by Accused 1 to phone Prophet Gerald Sibanda on his landline in Gwabalanda as he sought spiritual healing.

(e) The two accused persons made confessions to the police in their statements which were confirmed by a magistrate in accordance with the law.

(f) Nkosilathi Sibanda, the victim of a robbery perpetrated using the deceased's vehicle, picked the two accused persons in an identification parade….,.

This is not a case which hinges entirely on identification.

There are other pieces of evidence linking the accused to the offence. Accused 2 was fingered by Accused 1, who was connected by the prophet after a phone call in the middle of the night seeking spiritual healing, presumably following of the killing of the deceased. Therefore, the only inference to be drawn is that the two accused committed the offence. We are therefore satisfied that the State has proved its case, against both accused persons, beyond a reasonable doubt.

In this particular case, while the applicants were convicted essentially on circumstantial evidence, the law on that is very clear. In that regard, I can do no better than defer to the learned authors L. H. HOFFMAN and D. ZEFFERTIES The South African Law of Evidence, 4^th Edition, Butterworths 1992….,. where they say -

“In R v Blom (1939 AD 288) WATERMEYER JA referred to 'two cardinal rules of logic' which govern the use of circumstantial evidence in a criminal trial:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

At about 01:00 hours on the day in question, a group of people were cutting down electricity poles and stealing 8,1km of copper wire used in transmitting electricity. They had, as a result, caused a black out in the area which prompted State witness Sithole (a Security Officer in the area), to investigate. The copper wire was rolled and carried to a spot which was 30 metres from where the four applicants had parked their red Toyota Hilux motor vehicle - which motor vehicle had twigs hanging from the front bumper suggesting it had been driven through some bush and had distinct scratches on the sides consistent with driving through bushes. The culprits who had cut the wire and carried it to that spot were expecting to load it onto a vehicle but could not do so because the vehicle in question had disappeared - which disappearance coincided with the arrest of the four applicants. On being accosted by State witness Sithole, the applicants could not satisfactorily explain why they were parked at that place at such ungodly hour. They also had with them a weapon in the form of an axe and some sacks which they could not satisfactorily explain. In addition to that, not only were tyre marks similar to those of the Toyota Hilux observed at the scene of the crime, but also receipts and invoices for the sale of copper cables in South Africa, were found in the applicants' vehicle suggesting that someone using that vehicle was involved in selling copper cables.

With respect, there could only be one inference to be drawn from those proved facts especially as all four applicants were not resident anywhere near the place of their arrest. The evidence against the applicants is therefore pretty strong and their prospects of success on appeal are very slim indeed.

Considering that they have already been sentenced to a lengthy term of imprisonment and the prevalence of the crime of theft of electricity cables, the motivation to abscond is also very high. I am therefore not persuaded that the applicants are good candidates for bail or that their release would best serve the interests of justice.

The law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no-one else; and

(4) The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation by any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 

See S v Shoniwa 1987 (1) 215 (SC) and the cases therein cited.

In the light of the legal position about the circumstantial evidence, this court has to examine whether the circumstantial evidence in the instant case satisfies the requirements of law.

Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the State says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the State relies upon as part of its case or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused. In a circumstantial case, the State lacks direct evidence of that kind. This does not mean that a circumstantial case is, for that reason, weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken.

But, in a circumstantial case, no individual fact can prove the guilt of the accused. Where the State's case depends either wholly, or in part, on circumstantial evidence, then the court is asked to reason in a staged approach. The State first asks the court to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. The court is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. Ultimately, the State asks the court to find, based upon the basic facts that an accused person is guilty of the offence charged. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the State when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the State has established the guilt of the accused. It is important that the court approaches a circumstantial case by considering and weighing, as a whole, all the facts found established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt. The correct approach is first to determine what facts are established by the evidence. The court must then consider all of those facts together as a whole and ask whether it can be concluded, from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the State's circumstantial case fails because there is no proof of guilt beyond reasonable doubt. But if the court finds that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before it can convict the accused, it must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the State says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because there is no proof beyond reasonable doubt of the accused's guilt.

Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. The court must not base its conclusion upon mere speculation, conjecture or supposition. As pointed out by EBRAHIM JA in State v Masawi 1996 (2) ZLR 472 (SC)…,. -

“This is not a question of throwing any onus on the second appellant, but a conclusion of guilt that a court is entitled to draw from the weight of the circumstantial evidence adduced if no explanation of such evidence is forthcoming from the second appellant - R v Difford 1937 AD 370 at 373. Where circumstantial evidence leads inexorably to a definite conclusion no direct evidence is necessary for their probative value, save that things do not happen that way without reason or explanation.”

The appellant failed to explain why, for example, he entered the Clerk of Court's office at a time when he was not authorized to do so since he was on suspension on allegations relating to his duties there. He also could not give a reasonable explanation as to why he did not receive Michael Togaraseyi Muzhewe's passport at the time he received his bail deposit as he was duty-bound to. He could not explain why, soon after he had visited the toilet, the record in which the indiscretion regarding the passport was recovered in the toilet system rather than where it should have been.

The circumstantial evidence in the instant case may be broadly classified into three parts;

(1) The oral evidence to prove that the appellant was under investigation for theft of court records

He was escorted by police to the court house for the purpose of hand-over-take-over. He had the motive to conceal instances of further breaches of security regarding court records of which he was the custodian. If this particular record was discovered, it would have provided further evidence of criminal conduct on his part; the circumstances surrounding the bail conditions regarding one suspect whose passport was not retained by his office when it should have been.

(2) The recovered record in the case of Michael Togaraseyi Muzhewe

The state of the recovered record shows that it was recovered soon after it was flushed down the toilet. The appellant had visited the toilet shortly before the record was recovered.

(3)  The evidence shows that of all those who had access to the strong-room

The appellant had a stronger motive, better access and closer connection to the situation created by the failure to retain the passport of another suspect than anyone else at this court. Only he knew what transpired when bail was paid for Michael Togaraseyi Muzhewe without his passport being surrendered. This information was within his special knowledge. His conduct on the day of the recovery of exhibit 1 tied him more closely to all these events such that the only reasonable inference is one of guilt of the appellant. These circumstances, taken cumulatively, do not, in my view, admit of any other inference except the one which was drawn.

Sikwamula Filias Moyo was the key witness.

His evidence was that the deceased was his older brother whom he came after. He lives at his own homestead at Malalangenyama in the Tsholotsho area. He knew the accused from his (accused's) childhood and he lives in the same area. The accused is a distant relative of his.

On the morning of 7 August 2011, his brother's wife (deceased's wife) arrived at his homestead to inform him that her husband, who had taken cattle to the river to drink the previous day, had not returned home but the dog which had gone with him had returned in the morning. That was strange to the witness because he had never known the deceased to sleep away from his home. He then suggested that the deceased's wife, his wife, his son-in-law and himself should go and look for the deceased. He suggested that the women should go and check for him at his son's place while he went to a place where there was a bereavement. The deceased was not there but the accused was at the funeral. He returned to find out if the women had any information but they had none. The witness then suggested that they should go and search for him in the bush where they first saw his footprints. They followed the footprints. They saw drag marks as they approached a river known as Moza River. They followed the drag marks. As they did so, they observed some blood trails and human hair. They also noticed some maize grains which they believed were the maize grains which the deceased had eaten at the time he left home. They followed the drag marks until they got to an anthill where he suggested they should go back home but return the next day to continue with the search starting from where they had left. The search was stopped on the first day because it was getting dark. The witness went to report to the village head about what they had found that far. He also went to make a report to the police at Mbamba. The police advised him to go back and continue with the search and report the findings to them.

The next day, the search party proceeded to the point where the search was stopped at the anthill. When they got closer to the anthill the witness noticed that a tree branch had been pushed into a hole on the anthill. The witness pulled the tree branch out of the hole and saw one of the deceased's gum boots and took it out. It was the right foot gumboot. He recognized it as being the deceased's gum boot as he had seen him wearing the gumboots. They were cream in colour. The gum boot recovered from the hole was bloodstained. It is the one forming part of exhibit 6. As the search party approached Moza River the witness's daughter-in-law called him to a point on the river bed where the river bed sand had been disturbed. A close examination of the place led to the discovery of the deceased's body buried at that point. The witness went to collect two shovels which were used to remove the river sand covering the deceased's body. The body was buried partially naked facing down. The deceased had been wearing a track suit when he left his homestead to go and water his cattle. The track suit had been removed from the deceased. The witness noticed injuries on the back of the head, other injuries on other parts of the head, injuries on the shoulder and other injuries on the part of the body.

After the discovery of the body, members of the Neighbourhood Watch Committee were informed and they came with a policeman. The accused also went to the scene.

The police officer asked the people at the scene if they suspected anyone to be the culprit whereupon the the witness replied that he was convinced that the deceased had been killed by Nkanyezi Moyo – the accused - who was, at that time, sitting next to him. The officer then called the accused aside and arrested him. But he denied the allegations.

Plumtree police arrived with a coffin in which the body was put and conveyed to Plumtree. The police went to the accused's home where they recovered a pair of khakhi trousers which was still bloodstained. The witness was left at his homestead.

The following day, the police came with the accused. They had the axe and its broken handle. He identified the axe as belonging to the deceased. Both the axe and its handle were still bloodstained. The witness was not there when the axe and its broken handle were recovered following indications by the accused. The deceased had taken the axe with him as he went out to water his cattle. The axe and its handle were retrieved from the same ant hill hole where the left foot gumboot had been retrieved….,.

On the day the deceased was buried, which was a Friday, the police brought the deceased's track suit. The witness was not present when they recovered it buried on the Manzamnyama River bed following indications by the accused.

When asked by the State counsel why he suspected the accused to have killed the deceased the witness then said the accused was always fighting with the deceased and one Aleck Gumbo. He always insulted the two old men. The fights saw them at Chief Mahlathini and then Chief Gampu who finally resolved the matter by ordering the accused to pay damages in the form of five (5) goats to Aleck Gumbo for the insults. He was ordered to pay the deceased one goat which the witness went to collect from the accused's homestead. The endless quarrels seemed to have stemmed from accusations of witchcraft.

The witness said he did not see the police harassing the accused. He was surprised at the suggestion that there could be bad blood between him and the accused. He explained that the accused had not done anything wrong to him. He had no reason to lie against the accused.

Under cross-examination, it was put to the witness that he had made indications to the police which led to the discovery of the exhibits. He expressed surprise and disbelief and was emphatic that what he recovered with the search party was the deceased's right gum boot which was in a hole on the anthill about 40 to 50 metres from the river where the deceased body had been buried. He was not present when the other exhibits were recovered following indications by the accused. The witness's story on that point is supported by the evidence of the Investigating Officer, Detective Sergeant Trust Tarusenga, and Chimbutu Mashwana.

I pause to observe that this witness was not there when the axe and its broken handle were recovered following indications by the accused.

There is no direct evidence regarding the form of assault upon the deceased person besides what the accused told the court.

All circumstantial evidence depends ultimately upon facts which are proved by direct evidence but its use involves an additional source of potential mistake in its reasoning. The inference which it draws may be a non sequitor, or it may overlook the possibility of other inferences which are equally probable or at least reasonably possible. See South African Law of Evidence – HOFFMAN and SEFFERT 3^rd Ed….,. and R v Bloom 1939 AD 188…,. In the latter case, the court referred to two cardinal rules of logic which govern the use of circumstantial evidence in a criminal trial:

“(1) The inference to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that to exclude every reasonable inference from the one to be drawn.

If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.”

See also S v Vhera 2003 (1) ZLR 668; R v Sibanda 1963 (4) SA 182 (SR); and S v Mduduzi Tshakaza and 2 Others HB233-12.

The proved facts in the present case are that the accused person attacked the deceased with a heavy object upon the head. We have rejected the accused's defence that he threw the metal pipe in the direction of the deceased without aiming at her head. The post-mortem report clearly shows that the injuries were a result of severe force being exerted upon the head leading to brain damage and a depressed skull fracture. The accused's own confirmed warned and cautioned statement established that he did not throw the metal pipe but instead he hit her with the metal pipe. This is consistent with the nature of the injuries sustained by the deceased. The cumulative effect of the proved facts establishes the guilt of he accused person on a charge of murder.

The evidence before the court, however, does not prove that the accused actually intended to cause the death of the deceased.

In the result, we find the accused guilty of murder with constructive intent.

The 30 year old accused person is facing a charge of murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He is alleged to have strangled his 68 year old mother to death by closing her mouth and nose until she died. 

The accused pleaded not guilty to the charge.

The State's allegations are that the two resided at the same homestead. They had a strained relationship engendered by the fact that the accused had taken his wife to his father's place at Chamunangana Village and he would persistently ask his mother for money to go and pay lobola for his wife - which money was not forthcoming. As a result, the two occasionally fought and would be brought before the Village Head for counseling. That was the motive why, on 1 June 2012, at about 05:30 hours the accused entered the deceased's hut in which she was sleeping and murdered her as described above.

The accused's defence is that he did not commit the offence. He averred that on 1 June 2012 he left home for Lutumba to collect a (cell) phone from his young brother, Hardlife Ndou, and to also advise Hardlife Ndou to return home because he himself was on his way to visit his wife and that their mother (the deceased) wanted to go away for some days and cut hay for cattle feed. When Hardlife Ndou told him that he would only return home on the following Monday, the accused went back home, having phoned the wife to advise her that he was no longer coming to see her. He left Lutumba around 16:00 hours and arrived at home around 20:00 hours and went directly to sleep in his hut. He woke up the next morning and went to water the cattle at the borehole. On returning home around 09:00 hours he found no sign of activity and then checked the deceased's hut, noticed that the door was not locked, opened it and saw the deceased lying on the floor covered with a blanket. He called out to her but got no response. He then went to Muhlaba Sibanda's homestead next door and advised her he thought something was wrong with the deceased because he had called out to her but she did not respond. Muhlaba Sibanda accompanied him to the deceased's hut where she checked the deceased and advised him that his mother was dead.

Five witnesses testified for the State.

Muhlaba Sibanda:

She told the court that the deceased was her neighbour and her husband's cousin. When the accused came to her homestead on the morning in question he sat down and started crying. On asking why he was crying, the accused told her that he had tried to wake the deceased but she was not responding. Together with Matsubani Moyo and another old woman they went to the deceased's hut. She saw the deceased lying on her left hand wearing her clothes, covered with a blanket - dead. Her stomach was bulging. She then sent Matsubani Moyo to go and tell the Headman that the deceased was dead. She had last seen the deceased the Wednesday before but used to see her daily. She thought that the accused and the deceased were in good books. The accused said he had gone to Beitbridge the day before. She surmised that it was the accused who killed the deceased because the two stayed together.

Samu Ndou:

Also resides at Joko Village 3 where he is the Headman. On 29 May 2012, he had met the deceased at the borehole and she had told him that she had problems with the accused who had taken a wife and wanted her to give him money to go and pay lobola. The accused was also at the borehole and he told him not to pester his mother. On Saturday around 10:00am Matsubani Moyo came to tell him that the deceased had died. He uncovered the body and noticed that she was dead. After police came he noticed that the deceased's eyes were not closed which was a sign that she had not died on her own. The accused said he had returned from Beitbridge around 8pm and had not checked on the deceased till the next morning when he discovered her dead. He also surmised that it was possible that the accused could have killed the deceased in view of the misunderstanding between the two.

Rungano Moyo:

Resides in the same village with the accused. The deceased was his cousin. He believes that the accused killed the deceased. On Thursday 31 May 2012, the accused found him at the borehole watering cattle. The accused told him that the deceased wanted to see him so that the two would go and cut grass for cattle. He told the accused that he would go and see the deceased but he failed to go there. The next morning, the accused accompanied him to go and buy tobacco and they came back. The accused asked him if he had gone to see the deceased. He told the accused he would see her that day after watering his cattle. This was on Friday morning. But he failed to go and see the deceased on that day. The accused had never accompanied him to go and buy tobacco and he himself had never gone to cut grass with the deceased. He learnt of the deceased's death on Saturday. He did not know whether the accused and the deceased related well or not. He said he thought the accused killed the deceased because when he met the accused on the Friday, his eyes were red like someone who had been crying. He, however, did not ask the accused why his eyes were red.

Hardlife Ndou:

He shared the same mother (the deceased) with the accused but different fathers. On 30 May 2012, the accused assaulted him by clapping over a memory card. He then ran away to Lutumba. On 1 June, the accused came to Lutumba and told him to go back home since the deceased wanted to go and look for cattle feed. The deceased had told him about her intention to go and cut grass days before. The accused left around 4pm saying he was going to Beitbridge to collect his wife. He accompanied the accused and left him at a vehicle bound for their rural home. So the accused did not go to Beitbridge. From Lutumba to Joko Village 3 by car one takes about 4 hours. He said he was always quarrelling and fighting with the accused and whenever they did a job together, for a fee, the accused would take all the money for himself. The accused did not have a good relationship with the deceased as the two had a misunderstanding regarding the accused's wife whom the accused did not want the deceased to reprimand. The accused had two wives and one left due to the misunderstandings. He thought the accused killed the deceased because by chasing him for 500m over a memory card issue the accused wanted to kill him. He conceded that the accused never threatened him but the deceased although he could not recall the words accused used.

Stanford Clemence Gutsa:   

Is a Detective Sergeant in the Zimbabwe Republic Police with 16 years in the force, 6 of which he spent as a Detective. He knows the accused only in connection with this case. After receiving the report of the deceased's death he visited the scene with other police officers. The acused showed him the hut where the deceased was. He made a body search on the deceased and noticed that the deceased was bleeding from the nose and mouth. She was lying with her head slightly tilted to her left shoulder. He recovered two pieces of letters under the body. He took the letters and the body to Beitbridge Hospital mortuary. Thereafter, the body was ferried to United Bulawayo Hospitals for a post mortem. He did not see any signs of struggle in the deceased's hut. He opined that the deceased had died two days before because the body was in an advanced state of decomposition as a pungent smell emanated from it. The accused said he had arrived home from Beitbridge where he had gone to see his wife and found the deceased motionless. Initially, the deceased's death was treated as sudden death but because the pathologist stated the fractured femur could have been caused by assault, coupled with villagers' averments that the accused and the deceased did not see eye to eye, he then arrested the accused for murder.

The evidence of the other ten State witnesses listed in the notice was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] and the State then closed its case.

The defence then applied for discharge of the accused at that stage in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused is facing a charge of murder. It is alleged that on 10 January 2012, and at Zinatsa Village, Chief Svosve, Marondera, the accused unlawfully with intent to kill murdered Teckler Zamanja by striking her with a hoe on the head or realizing that there was a real risk or possibility that her conduct may cause death continued to engage in that conduct despite the risk or possibility.

Having pleaded not guilty and outlined her defence, the State, in turn, opened its case against the accused. Evidence was led from several witnesses….,.

The facts of the matter can be summed up as follows.

At the relevant time, the accused resided with her eight year old son Phineas and the four year old deceased who was her granddaughter. She had taken custody of the deceased at the behest of her daughter and son in-law. Apparently, the deceased's parents, who resided in Chiredzi, were of the view that schools were too far away when the time came for the deceased to attend school. At the time of the incident the accused had been residing with the deceased for two months.

On the fateful day, the accused had woken up early in the morning and gone to the bush where she secured a log with which to tie on a troublesome bovine in order to subdue it. Thereafter, she proceeded to Samuel Machekanyanga's home where she was allocated a portion of the field to weed for a fee. She went in the company of the deceased as there was no-one with whom to leave her at home. Phineas had gone to attend church. At the field was a boy who had been allocated his own portion to weed. Around 11a.m., the accused, the deceased and the boy were offered food by Samuel Machekanyanga's wife. In the process of feeding, Samuel Machekanyanga enquired how the deceased had sustained a wound on the face. The accused claims she replied that the deceased could explain for herself whereupon the deceased engaged in a discussion with Samuel Machekanyanga in which she explained what happened. On the other hand, Samuel Machekanyanga stated that the accused said on account of mischief the deceased had sustained the injury when she jumped from some structure being constructed at her home. Thereafter, the accused returned home in order to release her cattle for grazing. When she reached home she found Phineas who explained that there was no church on account of a funeral. The accused then instructed Phineas to drive the cattle to pastures. The deceased is said to have insisted on accompanying Phineas. The accused told them to join her at Samuel Machekanyanga's home upon their return.

It was whilst she was at Samuel Machekanyanga's home that the accused heard Phineas calling out that the deceased was no longer able to walk or talk. She responded by rushing to the borehole where Phineas was calling from. There, on the sink, she found the deceased whom she carried home. The accused claimed she asked Phineas as to what had happened. She was told that the deceased fell down as they returned from pastures. In the process, Phineas had to carry her to the sink where he tried to revive her by pouring some water. When the accused arrived home, her father-in- law and other villagers were already in attendance, having been attracted by her cries. Attempts were made to revive the deceased by pouring water. In this regard, the accused mentioned her sister-in-law, Alice Gororo, as being at the forefront in the efforts. With no sign of life being noted on the deceased, the local neighbourhood watch member was notified and the matter was then reported to Marondera police.

Prior to police involvement, Alice Gororo, Samuel Machekanyanga and others took Phineas to the places where the incident had occurred. They observed a few drops of blood at the borehole sink. Phineas also showed them where he claimed the deceased had fallen down and vomited but nothing significant was noted. The scene was along a path which passes between some gardens.

Alice Gororo stated that the last person she saw in the company of the deceased was Phineas. This was when the two drove cattle to the pastures.

When Samuel Machekanyanga responded to wailing at the accused's home, he found the accused who explained that the deceased had died. The accused further explained that they had tried to revive the deceased. There was water under the body, suggesting it had been poured on the deceased. He also noticed that there was a fresh wound on the deceased's head and it had little blood. The accused further explained that the deceased had fallen at the borehole sink. Samuel Machekanyanga further stated that he went to the sink with Phineas. He saw some drops of blood where it was said the deceased had fallen down. He queried whether this was all the blood and Phineas changed and told him the deceased had fallen down as they returned from where they had driven cattle. They walked for about a hundred metres and Phineas showed him the place where he claimed the deceased had fallen down. Samuel Machekanyanga asked what had caused the injuries as there were no stones or tree stumps. He was then shown a branch of a tree as the one that caused the injury. They then went back home where others had gathered.

This witness was of the impression that after eating at his home the accused and the deceased went back to the field. He did not know that they had returned to their home. It was after thirty minutes that he heard wailing at the accused's home. He was not told how the accused and the deceased had moved from his home. In any event, under cross-examination, he conceded that he did not continue to observe them when they were supposed to have returned to the field. He did not observe her return to his home for the second time. When he went to the accused's home he did not make a close observation of Phineas' clothing. Samuel Machekanyanga, under cross-examination, further explained that he knew Phineas as being clever. He was ready to answer questions he put to him and he did not cry or look shocked. As to why Phineas changed his version of events he said he thought the boy knew the truth but was unwilling to disclose. He further explained that he formed the impression that what Phineas explained might not have been his observations. Further queried on this aspect, he stated that it could not have been easy for Phineas to carry the deceased to the sink given his age. He also explained that Phineas told him that as they walked along the path by the gardens the deceased tripped on a branch, fell down and started to vomit. He denied that there was a fence post in the vicinity….,.

The accused gave evidence which is along the lines as summarised.

Under cross-examination, she initially stated that she got to ask Phineas about the details of the incident after she had been released on bail. When she was further asked why this was different from her Defence Outline, she backtracked and said she did ask Phineas on the day of the incident although there was no opportunity to go into the details. 

The State's thrust in respect of this aspect was to demonstrate that her disinterest in quizzing Phineas was indicative of a guilty mind on her part. The accused also explained how she got to stay with the deceased. There were no other minor children in her custody apart form the deceased and Phineas.

The State urged the court to find the accused guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Counsel for the State also submitted that even if there is no direct evidence, the matter should be decided on circumstantial evidence…,.

On the other hand, counsel for the accused submitted that the State had failed to prove the case beyond a reasonable doubt as there was no evidence incriminating the accused. He pointed out notwithstanding what is alleged in the indictment, no evidence was led on how the deceased sustained the multiple bruises noted in the post-mortem report. No evidence was led from neighbours regarding whether the accused used to abuse the deceased. He further submitted that Phineas Zinatsa's testimony cannot be relied upon as he claimed he was threatened by police officers.

It is not in dispute that there is no direct evidence linking the accused to the allegations. We make a finding that the last person seen in the company of the deceased was Phineas Zinatsa as confirmed by Alice Gororo….,.

Coming to circumstantial evidence, such evidence must always be viewed narrowly. As was held by KORSAH JA in S v Marange and Ors 1991 (1) ZLR 244 (SC)…, -

“Lord Normand observed in Teper v R [1952] AC 480 at 489 that:

"Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast doubt on another. Joseph commanded the steward of his house, 'put my cup, the silver cup, in the sacks' "mouth of the youngest,"  and when the cup was found there Benjamin's brethren, too, hastily assumed that he must have stolen it. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."

As it has been accepted that Phineas Zinatsa was the last person to be seen in the deceased's company; how can the resultant death be attributed to the accused?

The indictment alleges that the accused killed the deceased by striking her on the head with a hoe. However, the post-mortem report makes reference to multiple bruises all over the body as well as a wound on the right side of the head. No evidence was led on the probable cause of the bruises as well as the head wound. How can it be inferred that the injuries were caused by the accused when the last person seen in the deceased's company was Phineas Zinatsa? It is also significant to note that the post-mortem report noted that the deceased's clothes were dirty? No evidence was led on what could have soiled the clothes. Can it not be inferred that Phineas Zinatsa might have had something to do with the dirty clothes as he carried the deceased to the borehole?

The totality of the evidence is that it is unsafe to infer that the accused caused the deceased's death.  

The State Outline was read and produced as exhibit one while his Defence Outline was read and produced as exhibit 2. In his long-winded Defence Outline, the accused said on the fateful day there was a family gathering at Number 2 Tuli Close, Richmond, Bulawayo. He alleged that he had planned the family gathering with his cousins, Roy Smear and Robert Nzali. Beers were bought, and on arrival at the venue he was told that Thandiwe Sibanda and the child were there. He referred to Thandiwe Sibanda as his wife but other people referred to her as his girlfriend. The accused went into the house and took the child from his mother (child's). He asked the mother how the child was and was told that he was not quite well but the accused himself gained the impression that the child was not bad. He said he had not seen the child for more than a month. He therefore decided to take a walk to the shops with the child. While at the shops, he bought somemore beers and gave the child a few sips of beer as the child kept on nagging by gesture. (Meaning the child kept on asking for beer).

On his way back, he decided to go through a bushy area where he wanted to answer to the call of nature. While he was there he was approached by three people from behind. One of them had dreadlocks. One of them asked for matches from the accused but he did not have any. The three people set upon him and struggled with him wanting to drag him into the bush and beat him and the child. He held the child in his arm as the two were being pummeled with blows by the assailants. As the scuffle ensued a car approached and shone its lights on the assailants who immediately disappeared into darkness into the bush. That gave the accused a chance to run back to Number 2 Tuli Close, Richmond, Bulawayo.

On arrival, he noticed that Roy Smear was not there. When he inquired about his whereabouts he was told that people at the venue, in fact, believed he (accused) had gone with Roy Smear and others. Since only women had remained, he decided to go and sit at a car that was parked nearby. When the mother of the child asked to get the child from the accused the accused refused to give the child to her stating that he had not seen the child for a long time and wanted more time with him. The accused's sister brought a towel so that the accused could wrap the child with it. The accused said he requested to talk to the mother of the child but she said it was cold outside and went on to further suggest that they should sit inside the car. While they were in the car he gave the child more sips of beer. That infuriated the mother who complained that the child was not well. She went on to tell the accused's cousin that he was giving beer to the child. After supper, the child appeared sleepy. The accused and the mother of the child went to ask for a place for the child to sleep and were told to put him in the children's room. Thereafter, he and the mother went to a shed within the premises where the two had a chat for a long time before the accused went to join other men while she joined other women.

When it was time to collect the child and go to her uncle's place to sleep the mother of the child discovered that the child was breathless. People were alerted and a decision was taken to convey the child to hospital where the child was pronounced dead.

The accused said he loved his son so much and would never have done anything to hurt, harm or let alone cause his death. While admitting being with the child at all material times he denied causing his death.

What is strange and sticks out like a sore thumb is the fact that the accused never mentioned the alleged mugging by the three assailants to all his cousins and friends. Not only did he not tell the people at the family gathering but he also did not mention that to the police when they recorded his warned and cautioned statement…,.

Three witnesses gave viva voce evidence, namely, the mother of child, Thandiwe Sibanda, Roy Smear and Vanisha Timm. Their evidence is largely common cause and corroborative of each other.

Thandiwe Sibanda said the accused had phoned her requesting to see the child. She went to the venue and arrived at around 5pm. The accused arrived shortly thereafter. The child was about two (2) years old at the time. On arrival, the accused took the child from its mother and went out of the house while she remained inside with the accused's cousin, cooking. The accused went out of the premises with the child and was away for about 2 hours and only returned after nightfall at around 7pm. It had become dark and a bit cold outside. The witness told the court that she and the accused's cousin thought the accused and the child had gone to the shops with other men but that was not the case.

On his return, the witness asked him where he had been since he had not gone out with other men.  His reply was that he had taken a walk with the child. She noticed that the accused had a swelling on the left side of his forehead and the child had a scratch below his left eye. She asked the accused what had happened but the accused told her that the child had scratched himself. Most importantly, the mother observed that the child was breathing heavily almost gasping for breath. She asked the accused why that was so. His reply was that he had given the deceased some beer without saying what type of beer but said he had given him a little bit of it.

I pause to observe that he had, in fact, given the child a lot of it because the doctor who examined his remains found copious amounts of fluid – liquor - in the stomach. It is difficult to understand why the accused did that. His story that he gave him little sips is therefore not true.

The accused would not let the mother have the child. The accused left the kitchen where they had been standing and went to sit in the veranda with the child in his hands. She followed him as she had become worried about the condition of the child. When she got to where the accused was she noticed that the child was no longer breathing heavily like before and thought he had fallen asleep. The accused had made the child lie in his arms face down. She then suggested that the child should be taken to bed. The accused would still not let her have the child but stood up with the child in his hands. They went to the spare bedroom together and left the child there to sleep. The accused then suggested that two of them go and sit at a garage-like shelter.

To her surprise, each time she asked him to let her have the child he refused. He always said the child was alright and fine. So he never allowed her a chance to take the child and look at him closely; that was why all she could see was the scratch below the left eye. The accused would not allow her to have the child even when she could hear him breathing as if he was snoring and gasping for breath.

The accused acted in that manner for fear that the witness would have noticed other injuries on the deceased. For instance, she would have probably observed the finger marks around the neck. She also could have discovered, much earlier, that the child was lifeless and that his face was swollen.  He deliberately prevented her from discovering earlier that the child had died. As a result, the child was only discovered to be breathless after she had wanted to collect him and go to her uncle's place where she was going to sleep.

The witness told the court that the accused's mother did not want him to be in love with her. She never accepted the child and never went to see him until he died. She said the accused's mother first saw the child in the mortuary.

She told the court that some other time, before the fateful day, the accused had visited her and the child. During his visit, when the child was crying, he took him out with him to go and make him stop crying. He was away with the child for some time and returned. The next day she noticed that the child had a bloodshot eye. The child would scream when she was washing him especially when she touched his sides. When she told the accused he suggested that the child should be taken to the clinic and gave her some money as medical expenses. The eye was treated but the pain on the sides was not. The mother told the court that she never assaulted the child herself. This seems to suggest that the fractures to the seventh rib and the eight right rib occurred during the accused's visit. The child did not have the pain before the accused's visit. The accused must have inflicted those injuries as the child could not have inflicted them on himself.

The witness told the court that the accused had disputed paternity in this matter. He even deserted the witness when she was two months pregnant and only returned when the child was six months old.  She thought there was a change of heart on the part of the accused as he seemed to have accepted the child. He even supported the child.

Under cross-examination, the witness emphasized that when she asked the accused where he had gone to with the child he said he was just somewhere outside. He never told her that he had gone to the shops. She also was emphatic that when she asked him why he had a swelling on the left forehead the answer he gave her was that he did not know what happened to him.

I pause to observe that if he had been attacked and mugged this would have been the opportunity to tell his girlfriend about it. She said the accused never mentioned any attack on him.

The witness told the court that, other than having a flu, the child did not have any other problem when she went with him to the gathering. He was given paracetamol for the flu.

It came out clearly, under cross examination, that after the child was about 8 or 9 months, the accused appeared to love him and openly regretted the fact that he had denied being the father of the child due to the influence of his family members….,.

Her evidence is corroborated by that of Roy Smear and Vanisha Timm who both stated that the accused never mentioned the attack on him and the child by some unknown assailants.

The accused had no witnesses to call but gave evidence himself and stuck to what he said in his Defence Outline. However, he faired very badly as he was unable to explain why he had not mentioned the attack on him and the child. His explanation that he did not see it necessary is nonsensical and clearly false. The story of the attack is clearly a hopeless afterthought which must be rejected.

The court finds that the accused took the child away for two hours. When he returned with the child, he had sustained the injuries from which he died. The only reasonable inference that can be drawn from all the proved facts is that the accused inflicted the injuries from which the child died. The attack on the deceased was a brutal and callous one. The accused planned the murder. He phoned the mother of the child saying she should bring the child as he wanted to see him. On arrival at Number 2 Tuli Close, Richmond, Bulawayo he was told the deceased and his mother were already there. He took no time and immediately went to take the child from the mother. After taking him away from the mother he again wasted no time and went away with him to some unknown destination where he carried out the murderous attack on the child. He was away for about 2 hours with the deceased. On his return he would not allow the mother to have the child thereby preventing any early medical treatment of the child. He kept on saying the child was alright when he knew that he had brutally assaulted the child. His aim was to ensure that the child died. That explains why he would not allow the mother to have him before he died.

In her grounds of appeal, she complained that the trial court had erred in making a decision based on a gate pass which was not the relevant document in the matter, and disregarded the fact that there was no written company policy as to how the company required drugs for home visitations were to be withdrawn.

She asserted that the court a quo had erred in failing to consider that she had been operating on professional guidelines which stipulated that documentation of drugs given on home visitations were to be recorded only after assessment and issuing to patients.

Further, she went on to complain that the trial court erred in relying on the unreliable evidence of the guards who searched the car in which she was being driven in a pre-planned arrangement with management, all of whom knew that she had no gate pass and had not used one for the 3 years she was there.

Furthermore, the decision of the court a quo was assailed on the basis that it had misdirected itself in concluding that she could conceal a drug worth $2=50 and water for injection worth $2= yet she was in charge of the clinic with access to all drugs for the community and company and was a professional of 30 years experience.

She finally asserted that the court a quo erred in finding her guilty when there was no concrete testimony to support the conviction.

In her Defence Outline, she told the court that she was the sister-in-charge at the company clinic.  She was the only trained nurse working with nurse aides. There were three shifts at the clinic thus:-

(i) 7am to 3pm;

(ii) 3pm to 11pm;

(iii) 11pm to 7am.

Her duties were consultation and counseling services.

On the day in question, she was going for home visitation and hospital visitations. She had visited some patients the previous day and was supposed to return to give them some medication. When going for visitations she would take some painkillers and medication and assess the patient's condition. On the day in question, she requested for a car, which she was given, and would be driven by one Ndlovu, who, however, later said he was unable to go with her. She had decided to call off the visit but she got another driver. She then took a packet of the tablets in question. She got a gate pass for the car. It was her story that she had never produced a gate pass for the tablets and had never been asked to produce one for the 3 years she had worked at the company clinic. She did not see the need to get one on that day. After she had been given another driver and had obtained a gate pass for the car she proceeded to the gate where her car was stopped and was told the car was to be searched. The driver produced the gate pass for the car. She said she held the tablets in her hand. A female guard then searched her bag and found the water injection and asked her about it and her response was that she did not recall how it got there as she was busy. She could not remember how it got there. But the bottom line was that it was meant for the patients she was visiting. She got no satisfactory response when she queried why she was being asked for a gate pass for the tablets and water injection on that day when she had never been asked to do so before. Instead, the items were taken away from her. A day or two later she was informed that she had been fired.

At her trial, three witnesses testified for the State, namely, Samson Sibanda and Nasian Botoman, who were Security Officers, and the Assistant Loss Control Officer, Prince Trust Ndlovu. Both Security Officers said on the day in question they had been given specific instructions by the Loss Control Officer, Mr Mpofu, to thoroughly search a Mazda 323 motor vehicle in which the accused was when it got to the gate. A thorough search of the vehicle had to be conducted since something had been put in it. The Loss Control Officer did not tell the witness what it was that was allegedly put in the car.

The vehicle was indeed thoroughly searched resulting in the packet of 20 tablets and the half full 30ml water injection bottle being found.

The first witness, Samson Sibanda, alleged that the packet of tablets was found in the appellant's shoes but that was hotly disputed by the appellant who said she had it in her hand.

It is common cause that the appellant was going to visit patients; that was why she was authorized to use a company vehicle. She uses public transport to and from work. It is also common cause that there is no written company policy relating to how the sister-in-charge of the company clinic should draw medication to be used for home visitations. There is no clear-cut written policy on whether or not she needed a gate pass for medication to be used on home visitations because the appellant said she had never been asked for one during the 3 years she had worked for the company. She was being asked for a gate pass for medication for the first time on that day.

The gate pass produced by the Assistant Loss Control Officer was irrelevant and does not shed any light on whether or not the appellant needed a gate pass to take medication for home visitations. The gate pass produced as an exhibit shows the items being taken out as BP machine, stethoscope, and gloves for use at a hospital. These were not being taken out for home visitations. The items cannot be classified as medication.

It is also clear from what the appellant put to the witnesses in cross-examination that the gate pass procedure is not documented for all employees to see and read for themselves. It is also difficult to understand why the appellant would steal a packet of 20 tablets and half full bottle of water injection which she was in charge of. She was the one to account for all the medicines at the clinic. The appellant should have been given the benefit of doubt when she maintained, when cross-examining witnesses, that the items were meant for the home visitation patients.

The appeal succeeds in the light of the aforesaid….,.

In brief, the deceased was a thirty four year old mother of two. She resided in Shackleton whereas the accused resides in Murereka, Lions Den.

On 29 June 2013, the deceased attended a musical show in Murereka in the company of a friend. At some stage of the night the deceased had an encounter with the accused. Her naked body was found on the following day near the local Catholic Church. The cause of death was established as cervical spinal injury.

The accused's defence was to the effect that he had been having an affair with the deceased prior to her death. On the fateful day, they planned to attend a musical show. The deceased was the first to attend whilst the accused attended to their brick-moulding business with his brother. Ironically, the accused had told the deceased to wear the clothes he had bought for her. Upon following to the music venue, the accused proceeded to the back of the bar. He was shocked to find the deceased being intimate with another man. The deceased then advised the man that her husband had come and the man bolted. The accused confronted the deceased who shouted at him and told him he had no right to challenge her as they were not married. They proceeded outside the wall to the premises whereupon the deceased told the accused she no longer loved him. This prompted the accused to demand the items which he had given to the deceased. These comprised a tracksuit, skin tights, black boots and a cell phone. The deceased suggested that they go to a friend's place near the Catholic Church where she would get alternative clothes. Whilst on the way, the deceased changed her mind and refused to surrender the clothes. The accused then grabbed the deceased by the neck and ordered her to remove the clothes. He then left and does not know what happened to the deceased….,.

From the evidence the State eventually led, the court heard that the deceased cohabited with one William. This William had been away to Kariba for two weeks prior to the tragic event.

One other sordid aspect of this matter is that the deceased and her friend, Queen Nhamo, were women of easy virtue. Despite Queen Nhamo claiming to be a fruit vendor, it emerged from her testimony that they did not mind supplementing their income by peddling sexual favours. This is why on the day in question Queen Nhamo got a police officer to purchase for her beer and food. She was later to retire for the night with the same officer. Queen Nhamo claimed not to know the accused person. She lived within the same neighbourhood with the deceased. The deceased frequently visited her in the company of William. Surprisingly, Queen Nhamo never visited the deceased's residence, attributing this one way relationship to the fact that the deceased was “married” whereas she was not.

One remarkable aspect which could not have emerged without viva voce evidence is that on the fateful day, the deceased informed Queen Nhamo that the clothes she was wearing had been purchased by William. William had not finished paying for the items. The deceased had had a dual sim card Nokia D200 for about a month. Surprisingly, Queen Nhamo made the court believe that she was not curious to know where the deceased had obtained the phone. This is particularly so as an opportunity had presented itself by the deceased volunteering information regarding her attire. Queen Nhamo had not seen this attire previously.

With cohabitation appearing to be the order of the day and being accorded the status of marriage, the court heard that the accused had moved in to stay with his lover, Chipo Bokosha, three days before the incident. The two had been in love for three months. Chipo Bokosha had left the Ministry of Transport quarters within Lions Den upon termination of employment. She knew that the accused and his brother were engaged in brick moulding. She also joined the venture.

According to Chipo Bokosha, on the fateful day, the accused left home to attend a musical show. Later at night, after she had retired to bed, the accused returned and offered her some clothes. She simply placed the items aside. On the following day, she discovered that, apart from being used, the clothes had blackjack sticking on them. She found this objectionable and took up the issue with the accused's brother and parents.

Whilst returning home, Chipo Bokosha heard about the discovery of a naked body at the Catholic Church. With a description of the clothes that the deceased was last seen wearing matching what she had been given by the accused, she visited the police station. It was suggested that when the accused returned home she should lock up the accused and alert the police officers. This is what she did when the accused subsequently turned up. The accused was arrested by some uniformed officers who handed over the case to Criminal Investigations Department….,.

On the other hand, the accused testified in his defence.

He maintained that he had had an affair with the deceased for three months. He was hurt to see her being intimate with another man. He was further angered when the deceased told her she was no longer interested in him. That is what prompted him to demand the clothing. Despite having stated in his evidence in-chief that the deceased was the first to attack him, he conceded, under cross-examination, that he was the first to grab the deceased by the neck. The deceased then retaliated by grabbing him by the neck and they struggled. He then forcefully pushed her and she fell down within the bed of sweet potatoes. The place had grass, remnants of sweet potato plants and stones.

The accused denied that he meant to kill the deceased or that he realised that death might occur. He even denied foreseeing death resulting from his conduct.

There is a contradiction between the Defence Outline and his testimony regarding how he got the deceased's clothes. Nonetheless, he confirmed that he undressed the deceased whom he left lying down and crying….,.

It is possible that the accused may have had an affair with the deceased. What is incredible is the accused's claim that he intended to marry her. This is so considering his assertion that she was of loose morals. It is unconvincing that he believed she would reform with marriage. In any event, the accused was already cohabiting with Chipo Bokosha. Considering that he knew the deceased to be of loose morals he could not have been incensed by seeing her being intimate with another man. Nonetheless, the accused must have had a disagreement with the deceased, the nature of which cannot be conclusively established. The accused then grabbed the deceased by the neck. He must also have bitten her on the left ear. According to the accused, he was upset to see the deceased being intimate with another man. Perhaps it is an aspect of selfishness and jealousy that drove the accused to detest being double-crossed. That the deceased may have been up to some mischief cannot be discounted. When Queen Nhamo sought to invite her for a meal she failed to locate her. She had no idea where the deceased had gone to and eventually left without seeing her.

Can it be inferred that the accused deliberately killed the deceased? If so, what was the motive? There being no direct evidence we refrain from inferring such intention to kill. The absence of forensic evidence militates against making such a finding of intention to kill.

As for whether the accused realised the real risk or possibility of death; there is the issue of the manner of assault to be considered.

Doctor Madzura testified that he did not see any indentations on the deceased's throat. He further stated that cervical spinal injury can be caused by bare hands or a hard object (blunt force). Nonetheless, in either case, severe force would have been required. What was not clear was whether manipulating the neck with bare hands caused the injury. The other explanation by the doctor was that this type of injury can also depend on the nature of the object that caused it. In the present case, it can be the nature of the fall and the surface where the deceased fell. What is required is the force that displaces the bones. If the cervical spine was exposed during the fall, it may have led to the deformity.

What we have before us is a borderline situation.

Having been angered, the accused grabbed the deceased by the neck. He must also have bitten her on the left ear. He then forcefully pushed or shoved her and she fell down in a bed of sweet potatoes. The State did not lead evidence on the layout of the scene of the crime. The accused then stripped the deceased and left her lying down and crying. Either force was applied to the neck with bare hands or the deceased was violently thrown to the ground. The probability seems to be the latter act which led to the injury.

According to section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), a person shall not be held criminally liable unless his or her conduct caused or substantially contributed to the consequence. A person's conduct is deemed to have caused, or substantially contributed, to a consequence if it is the factual cause of the consequence. What it means is that but for the conduct, the consequence would not have occurred. The conduct should also be the legal cause of the consequence in that it must be a reasonably foreseeable consequence of such conduct or was brought about by a new cause after the conduct, which cause was itself a reasonably foreseeable consequence of the conduct.

There is no doubt that the accused's conduct led to the deceased's death. But for assaulting the deceased in the manner he did, the deceased would not have died. It is immaterial that the accused left the deceased alive. He left the deceased in a helpless state, which means she was mortally injured. It was also reasonably foreseeable that in grabbing the deceased forcefully by the neck, and then pushing her with force, she might be seriously injured.

In view of the possibility that the deceased might have sustained the fatal injury from a fall it cannot be said that the accused harboured some intention by way of realisation of the real risk or possibility of death. This is buttressed by the State's failure to lead forensic evidence which might have supported sexual assault. It is therefore unsafe to return a verdict of contravening section 47(1)(a) or (b) of the Code. Nonetheless, a reasonable person would not have conducted himself in the manner the accused did.

He is therefore found guilty of culpable homicide.

The evidence established clearly that the appellant came to the homestead just after 9:00pm on the night in question. The evidence also established that the appellant must have been unhappy when his advances were spurned. 

Whilst no-one actually saw the appellant torch the hut, the inference from all the facts is irresistible that it must have been him, and no-one else, who had the motive to set the hut on fire.

The appellant's counsel conceded, during submissions, that the evidence against the appellant was overwhelming and that the conviction was unassailable. 

In my view, the concession was properly made.

The deceased, Rice Phiri, was employed at New Base Construction Company, Zvishavane. He resided at Makwasha Village, Chief Masunda, Zvishavane. His place of residence was within walking distance of Zvishavane town. He would use a bush path from his homestead to Zvishavane and back to his homestead. 

The deceased and the appellant were known to each other as they stayed in the same area.

On 24 November 2004, the deceased finished work at about 5:00pm and proceeded to his home along the footpath. He had in his possession a satchel containing his pair of overalls inscribed with the words “New Base” at the back, a sack containing ten (10) kilogrammes of wheat meal and an unknown amount of cash. He was waylaid by an assailant and stabbed on the back with a sharp object. His property was then taken. When the police eventually recovered his body, they found two wounds – one on the back and another on the chest. The wounds appeared to have been caused by a knife or bullet. The police also recovered the satchel together with the overalls from the scene and the ten (10) kilogrammes of wheat meal from the appellant's residence….,.

The allegation in the court a quo was that it was the appellant who killed the deceased and thereafter took his property.

In his defence in the court a quo, the appellant admitted finding the pair of overalls and sack of wheat meal at a spot on the side of the road and taking them. He further admitted that he gave the meal to his workmate, Forward Machingauta, to take to his house. He admitted that he took the overalls and an empty sack and inserted these in a hole in an anthill. He however denied seeing the deceased or in any way injuring him. The appellant told the court a quo he believed that the wheat meal and overalls had been dropped or abandoned by thieves who were known to frequent this area.

The court a quo found that the appellant had possession of the property of the deceased soon after he had been murdered. Further, that the appellant took the property, which included the deceased's wallet and identity card, and hid these in a hole in an anthill not very far from where the deceased's body was found. It was also the finding of the court a quo that at no stage did the appellant attempt to surrender the deceased's items to the police and that when he was confronted by the police he and his wife denied all knowledge of the deceased's property. It was only after the police had searched the appellant's house and recovered the bag containing the wheat meal that the appellant then came up with the story that he had found the property in the bush. The court further found that when invited by the police to show them the spot where he had found the items, the appellant had declined to do so. 

In general, the court found that the appellant's version was improbable and that the evidence, though circumstantial, pointed towards the appellant as the person who had committed the gruesome murder in order to commit a robbery. The court a quo accordingly found the appellant guilty of murder with actual intent, and, finding no extenuating circumstances, sentenced him to death.

In his submissions before this Court, counsel for the appellant had no meaningful submissions to make against both conviction and sentence. In the light of the fact that the appellant had possession of the deceased's property soon after he had been killed, that he hid some of the property in a hole in an anthill, that when approached by the police he initially denied all knowledge of such property, and, lastly, that his explanation as to how he came to be in possession thereof was rejected as false.

Counsel for the appellant conceded that there was no proper basis upon which the findings of the court a quo could be impugned.

On a careful perusal of the facts and the evidence, I am satisfied that the explanation given by the appellant was by no means credible or probable. He was unable to explain why, having found the items, he did not report to the police. He could not explain why he then hid some of the property in a hole in an anthill. According to the investigating officer, in addition to the pair of overalls, there was also a wallet and an identity card belonging to the deceased in the hole.

It is common cause that the deceased did not return home after work on Wednesday 24 November 2004. It is also not in dispute that the following day, Forward Machingauta, accompanied by Gift Chingwe and Arnold Mudzuri, were taken by the appellant to the anthill where the appellant retrieved the bag of wheat meal which he gave to Forward Machingauta to take to his homestead. It is common cause there was a blue pair of overalls, a wallet and an identity card belonging to the deceased in the same hole.

What emerges clearly from the evidence is that the appellant had possession of the deceased's property shortly after the murder. When confronted by the police, he denied all knowledge and only admitted having found the items when the police searched his hut and recovered the bag of wheat meal belonging to the deceased. He declined to show the police where he had found the items in the bush. Moreover, the appellant knew the deceased as they stayed in the same area. The deceased's identity card was recovered from the hole where the overalls were found. At the time he placed the various items in the hole, the appellant must have known the identity of the deceased as his identity card was amongst the items. These facts, taken together with the fact that his explanation on how he came into possession was highly improbable, suggest that indeed it was the appellant, and nobody else, who must have murdered the deceased and taken his property.

In the circumstances, I agree that the finding by the court a quo that the appellant committed murder with actual intent cannot be impugned. Nor can the finding by the court a quo, that this was a murder committed to facilitate a robbery, be said to be wrong….,.

Further, as this was an exercise of discretion, this Court has no basis for interfering with the findings of the court a quo in the absence of a misdirection or other irregularity.

In the circumstances, the appeal against both conviction and sentence must fail.

The facts that are common cause are as follows.

The deceased was thirty five (35) years old at the time of her death and was residing at her sister's plot at Number 8, Mariposa, Insuza, in Matebeleland North. On 23 January 2008, the deceased was waiting for transport to take her to Bulawayo at a bus stop at the 67km peg along the Bulawayo- Victoria Falls Road. She had in her possession a twenty litre (20) container of milk and a bag containing some money. The appellant came cycling along the road. The appellant thereafter strangled the deceased with a rope in a bush a short distance away from the bus stop. The appellant then took the bag containing approximately twelve (12) million dollars Zimbabwean currency. He was seen emerging from the bush by one Priscilla Mpofu. He thereafter took his cycle, which was leaning against a tree, and cycled along the Bulawayo Road. Using the description given by Priscilla Mpofu, the police made a follow up. The appellant was apprehended by members of the public and turned over to the police.

A post-mortem examination conducted at Mpilo Hospital the following day revealed the following injuries:

(i) Various scratch marks and bruises on both feet and ankles.

(ii) Multiple abrasions and bruises around the knees and upper front of both thighs. 

(iii) The examination further revealed a 4 x 3cm wound just below the right armpit and small wounds and scratches on the hands, wrists and shoulder. 

(iv) The vaginal opening was found bruised on the right and back of the vaginal orifice. There were also five (5) small abrasive wounds on the vaginal canal on the right side and on the back; a slippery semen-like fluid mixed with blood was also detected.

The doctor found that the cause of death was asphyxia and brain haemorrhage due to ligature strangulation. He remarked that this was a callous rape and murder. In the doctor's opinion, the deceased died a very painful death.

In his defence before the court a quo, the appellant stated that the deceased was his girlfriend and that on the day in question he came across the deceased as she was in the act of having sexual intercourse with another man, whose vehicle had been parked at the bus stop. The man had then run away. Owing to a misunderstanding that arose thereafter, he then took a rope with which he used to strangle the deceased. Whilst admitting that he strangled the deceased, he denied that it was his intention to kill her. He also told the court that the statement he made to the police had been induced by assault and torture and that it had not been made freely and voluntarily. Whilst admitting killing the deceased, he denied raping her.

In a confirmed warned and cautioned statement, the appellant admitted that he came across the deceased at a bus stop and demanded money from her. He admitted choking her with a piece of rope before raping her and murdering her. In the statement, he also admitted that the deceased, on hearing voices, tried to scream. He had then tightened the rope around her neck so that she would not scream. He realised she was dead after which he removed her bag containing the money. He had then walked back to the bus stop where he met the witness, Priscilla Mpofu. He had then cycled away but was apprehended by the crew of a commuter omnibus and handed over to the police….,.

In view of the fact that the appellant was alleging that the warned and cautioned statement had been induced by assault, the court a quo conducted a trial within a trial. 

After hearing evidence, the court a quo came to the conclusion that the statement had been given freely and voluntarily and that no undue influences had been brought to bear.

In its judgment, the court a quo believed the evidence of the State witnesses. In particular, the court believed the evidence of John Phiri who was staying at the same plot as the deceased and who stated that at no time had he seen the appellant at the homestead where the deceased was staying. He also believed the evidence of the arresting detail, Sergeant Emmanuel Ziva Chinganga, that when the appellant was arrested, he complained that he had been assaulted by the passengers and crew in the commuter omnibus.

As regards the evidence of the appellant, the court a quo found that evidence improbable and lacking in credibility. In particular, the court found that the appellant, who claimed to have known the deceased for eighteen (18) months before the fateful day, did not know her name, other than “MaNdlovu”, which name in any event was not correct as the deceased's name was Sanelisiwe Ngwenya.

In submissions before this Court, the appellant has attacked the conviction and sentence on a number of grounds. 

As regards the conviction for rape, he has submitted that the State did not prove beyond a reasonable doubt that he had indeed committed rape. Further, he contended that the court a quo misdirected itself in relying on the warned and cautioned statement which he had challenged. He also challenged the finding by the court a quo that his version was not credible and was not supported by the probabilities.

On the conviction for murder, he submitted that the court a quo erred in finding that murder with actual intent had been proved, and, further, that the court a quo had erred in conducting a trial within a trial in respect of a confirmed warned and cautioned statement which had already been admitted into evidence.

As regards the sentence of death that was imposed, he has attacked the finding that there were no extenuating circumstances in the light of the fact that this was a crime of passion and the appellant had been tortured by the police.

It seems to me that since the warned and cautioned statement was relied upon to a large extent in reaching findings of fact, its admissibility should be determined right at the outset….,.

The statement gives a detailed account of the circumstances surrounding the rape and murder of the deceased. In the statement, the appellant says he had demanded money from the deceased. When he tried to search her, she ran away and he followed her. He caught her as she was trying to go through a fence. He then tied a rope around her neck at which stage she pleaded with him not to kill her and instead offered him sexual intercourse. He then raped her. When they heard voices, she tried to scream and he then tightened the rope around her neck, killing her almost instantly. He then took her bag containing money and went back to the bus stop to retrieve his cycle.  There he met the witness, Priscilla Mpofu.

The warned and cautioned statement confirms that he did not know the deceased before this encounter and that he came across her by mere chance. John Phiri, who was staying with the deceased at the same plot, told the court he had never seen the appellant at the plot and that the appellant could not have come to the plot undetected as he had vicious dogs there.

Moreover, the medical evidence shows that the deceased was attacked and was violently raped. This could not have happened during the time the appellant says the deceased was found having sexual intercourse with an unknown man who, on seeing the appellant, absconded to his car and drove away. This claim is highly improbable, and, in my view, false. On the appellant's own version, such intercourse would have been consensual. The injuries found during the post-mortem examination were not consistent with intercourse having taken place by consent.

In my view, the only inference that can be drawn is that the appellant violently raped the deceased in the manner described in his warned and cautioned statement.

I am satisfied that the court a quo was correct in coming to the conclusion that the version given by the appellant was not credible. The appellant did not even know the name of the deceased, whom he claimed was his girlfriend of eighteen (18) months.

The facts of the matter are that the accused person was employed as a shopkeeper at Durban Mine Business Centre. She received stock for trade. On the 17^th of January 2014, a stocktake was conducted by the accused's superiors in the accused's absence and stock amounting to $1,026= could not be accounted for. It was alleged that the accused was the sole custodian of the keys to the shop and therefore was solely responsible for the general deficiency in stock, or, alternatively, that she failed to account for the inadequacy in the stock.

The accused person's defence was that she could not be held to be solely responsible for the deficiency as she was not the sole person that dealt with the stock at the shop. The accused person alleged, in her defence, that the shop owner's wife and some trainees would also access the shop and sell stock therein. The first State witness, Sanelisiwe Masibi, upon being asked by the prosecutor that in fact the accused stated that she could not be solely responsible for the shortfall as the complainant's wife and some trainees were also handling stock, she responded thus:

“It is not true the complainant's wife would cause everything she took from the shop to be recorded and trainees are under her supervision.”

This is the same witness who stated that she was not involved in the day to day occurrences at the shop but only come in to balance books as there was a shortfall. How then can she exonerate the complainant's wife and the trainees in this manner?

The shop-owner himself, one Mark Harold Ncube, also gave evidence, and upon being asked of the accused's assertion that she could not to held solely liable for the shortfall as his wife and trainees also handled stock in the shop he responded thus:-

“Accused is solely in charge of stock. Anyone handling stock in the shop did so with her permission. That is the golden rule of the company.”

This answer is clearly skirting the issue of the complainant's wife possibly having created the shortfall; for it is difficult to envisage a situation whereby the complainant's wife, being the boss of the accused person, would do everything she did in the shop under the accused's authority. As long as the complainant's wife did interfere with stock and had trainees under her supervision in the same shop that the accused was manning it becomes difficult to find that the accused was in control of such a situation and therefore solely responsible for deficiencies in stock.

The trial magistrate, in her ruling, found that the accused's assertion that some people would sometimes assist in the shop and hence she could not be held responsible for the deficiency, to be an unproven fact.

One wonders on what basis since the evidence of the State witnesses that I have quoted above clearly shows that the complainant's wife and the trainees would sometimes deal with the stock although both witnesses sought to put the blame for the deficiency solely on the accused person.

The question that follows therefore is; can the accused person be held to be solely responsible for the shortfall in these circumstances?

General deficiency, or failure to account for property in one's custody, in my view, can only be satisfied where clearly the accused person cannot point fingers at a third party. In these circumstances, where the complainant's wife and some trainees also had access to the shop and the stock and would sell in the same shop with the accused, it cannot be found that the accused person was solely responsible for the shortfall beyond any reasonable doubt.

I am unable to confirm this conviction for the aforestated reasons. I accordingly order as follows:-

The court a quo was alive to the fact that it was dealing with a case in which the guilt of the accused was sought to be established by circumstantial evidence. 

It was satisfied upon application of the relevant test that the only fact which can be established by reasonable inference from all the circumstances of the case was that the appellant was the killer of the deceased.

The court a quo said:

“In our view, the accused's activities point to no other way other than his full involvement in the murder of the deceased. The question then is, is there any other inference which a reasonable court can draw other than that the accused is responsible for that murder. The answer, in our view, is in the negative. We find that there is no other inference which can exclude his innocence.”

The decision of the court a quo is supported by evidence.

This is an automatic appeal against the conviction for murder with actual intent and sentence of death imposed by the High Court Bulawayo, sitting as a Circuit Court in Hwange on 23 November 2012.

The appellant was charged with the murder of the deceased; it being alleged that on 12 October 2011, and at Mabale grazing lands, the appellant did wrongfully, unlawfully, and intentionally kill Virginia Mukandla a female adult in her lifetime therebeing.

The facts that gave rise to this matter may be summarised as follows:

The appellant was employed as a herdboy by the deceased and her husband. At the relevant time, the appellant was aged thirty-one (31) and the deceased was twenty-nine (29) years old. On 12 October 2011, at about 0600hrs, the appellant approached the deceased's husband and asked him to accompany him to fetch some firewood. The deceased's husband was unwell and the deceased offered to go in his stead. They then left in an ox-drawn scotch cart.

At about 1300hrs, the deceased's husband noticed that the dog that had accompanied the deceased and the appellant had returned to their homestead without the two. He decided to ask their neighbour, a Mr Matthew Moyo, to follow the appellant and the deceased.

Mr Moyo followed the tracks that had been made by the scotch cart which had been used by the appellant and the deceased. When he arrived at the scene he found the scotch cart and oxen tied to a tree. Upon further investigation, he saw the deceased lying face down in a pool of blood. She had a deep cut on the back of her neck and she was dead. The appellant was not at the scene. He returned home with the news and a report was made to the police.

The appellant was subsequently apprehended by one Clifford Ncube and other game rangers in the National Parks area on suspicion that he was poaching. When the appellant was questioned by Mr Ncube, he told him that he was on his way to Tsholotsho to visit his wife. Mr Ncube advised him that he was lost and suggested that they should go to the National Parks Main Camp where he would get transport to Tsholotsho. The appellant tried to run away but was apprehended by Mr Ncube and his colleagues and taken to the National Parks Main Camp. They discovered that the police were hunting for him in connection with the death of the deceased and he was subsequently arrested.

A postmortem report prepared by Doctor Sanganai Pesanai, a registered medical practitioner at United Bulawayo Hospitals, was produced at the trial of the appellant. He observed that the deceased, who was about thirty weeks pregnant, had a laceration at the back of her neck. He found that the cause of death was cervical spine fracture due to assault.

Upon his arrest, the appellant stated, in his warned and cautioned statement, that he was cutting some firewood near the place where the deceased was sitting. He missed the wood and the axe struck the deceased on the back of her head. In his evidence in chief he explained that the axe he was using slipped from his hand and accidentally struck the deceased.

The court a quo disbelieved the appellant and found that he had deliberately attacked the deceased with the axe. It found him guilty of murder with actual intent.

It was the unanimous view of this Court that the court a quo had misdirected itself, in finding on these facts, that the appellant had deliberately killed the deceased.

The court a quo found that the only inference that could be drawn from the appellant's explanation on how the deceased came to be struck by the axe, together with his conduct of running away from the scene, was that he was guilty of murder with actual intent.

At the hearing, the appellant's counsel submitted that the finding by the court that the appellant had intentionally killed the deceased was not the only inference that could be drawn from the facts of the case. Counsel for the appellant referred the court to the case of R v Blom 1939 AD 188, where the Court set out two cardinal rules which must be taken into account when dealing with circumstantial evidence:

(1) The first rule is that the inference sought to be drawn must be consistent with all the proved facts; and

(2) The second is that the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.

In the present case, it is our view that the inference that the appellant deliberately attacked the deceased is not the only inference that can be drawn from the proven facts.

(a) Firstly, there was no evidence placed before the court of any motive for the appellant to want to kill the deceased;

(b) Secondly, it was not in dispute that on the day in question the arrangement was that the appellant would go to collect firewood with the deceased's husband. It was only because the latter was unwell that the deceased offered to go with him. Thus, the decision that the deceased accompany the appellant was made on the spur of the moment;

(c) Thirdly, from the evidence of the deceased's husband, there was no bad blood between the appellant and the deceased; and

(d) Finally, the evidence of the police details did not state that there was any evidence of a struggle at the scene.

The court a quo found that the fact that the appellant fled from the scene, instead of going to make a report about what had happened, was indicative of his guilt.

If, indeed, the deceased was struck with the axe in the manner described by the appellant (and there is no contrary explanation on the record) then his explanation that he ran away because he was so shocked by what had happened is, in our view, plausible.

However, there can be no doubt, even accepting the appellants own evidence, that chopping firewood in such close proximity to the deceased was indeed negligent. It should have been reasonably foreseeable to an ordinary man that an accident with an axe could occur.

The angle that the appellant described as the one used to chop the firewood could easily have caused injury to a person who was so close to where the firewood was being chopped.

In our view, the fact that there were no freshly chopped pieces of firewood at the scene would not necessarily mean that the appellant set out to attack the deceased. It could very well have been that the deceased was struck with the very first attempt by the appellant to chop the firewood.

As there was no eyewitness to the offence, the appellant must be given the benefit of the doubt.

Counsel for the State conceded that, on the facts, the court a quo should have returned a verdict of culpable homicide.

In our view, this concession was properly made.

As indicated below we proceeded to set aside the conviction and sentence imposed by the court a quo. Having substituted the conviction of murder with that for culpable homicide, we then invited argument in mitigation before passing sentence….,.

1. The conviction and sentence of the appellant for murder with actual intent are hereby set aside.

2. The appellant is hereby found guilty of culpable homicide.

The facts of the case are largely common cause.

The deceased was the appellant's younger brother. He operated a grinding mill, and two weeks before this incident, he had sold his cotton for which he had been paid US$1,800=. He was known to carry large sums of money in two wallets which he kept on his person.

The appellant was aware of this. 

On the fateful day, the appellant went to the deceased's homestead to request the latter's assistance in making contour ridges at his field. The deceased stated that he was unwell whereupon the appellant went away and returned with herbs with which he prepared a concoction and gave the deceased to drink. After taking the concoction, the deceased announced that he was feeling better and they left for the appellant's field. The appellant was carrying an implement known as a w-bar (used for digging), a mattock, an axe, and a shovel.

Upon arrival at the appellant's field, the appellant struck the deceased on the head several times with the mattock.

The deceased died instantly.

The appellant searched the deceased and took an undisclosed amount of cash which he found in his pocket. He then buried the deceased in a makeshift grave, used the shovel to fill the grave with soil and thereafter covered it with thorn bushes which he had cut using the axe. That done, the appellant returned to his homestead, packed his clothes and, together with his wife, left for Harare. The body of the deceased was discovered ten (10) days later and a report made to the police leading to the subsequent arrest of the appellant in Harare. The body was exhumed and a search for valuables revealed only a Nokia phone. The two wallets and the money were never found.

On 22 August 2012, a postmortem examination of the deceased's remains was performed. The doctor concluded that the cause of death was head injury, multiple skull fractures, and blunt force trauma.

In his warned and cautioned statement recorded by the police on 25 October 2012, the appellant admitted that he killed the deceased in order to rob him of his money. He, however, denied finding any money when he searched the deceased after his death; however, the inference is irresistible that he must have taken the money.

The appellant gave oral evidence in his defence.

He told the court that he approached the deceased who was playing under a tree and asked for her mother. The deceased told him that her mother had gone to fetch water but would be back shortly. He decided to await the return of the deceased's mother and, as he was tired, he leaned against a ladder which was propped up against the tree. The ladder accidentally fell and hit the deceased who became unconscious. His attempts to administer first aid to the deceased failed, and, fearing the reaction of the people of the neighbourhood, he lifted the deceased and took her into a nearby bush in order to resuscitate her far from the public eye.

The deceased did not recover and he abandoned the body in the bush and ran away.

Evidence was led by the State from Francisca Chirozva. She resides at Village Chikwakure.

She knew the deceased as a niece of her sister in law. On the night of 17 July 2011, she was away from home. She returned on 18 July at about 9am. Shortly thereafter, her sister in-law, Tendai Sibanda, arrived at her home asking whether she knew of the whereabouts of the deceased. The witness did not and enquired as to why she was looking for the deceased. It was then that she was told that the deceased had not come with the other children when they were called for tea nor was she to be found at her grandmother's homestead. She began to search for the deceased and traced the footprints of the deceased from the place where she had been playing with the other children. In so doing, they observed a big boot print belonging to a man with a child's footprint alongside the boot print. As they followed the trail, the child's footprint suddenly disappeared but the boot print could still be seen and it was followed and led them to a stream and a bushy area. They continued to track the shoe print and came upon two deposits of human faeces and a pair of shorts soiled with human waste across the stream. The police were called and a report made to them. After they had left, the witness, together with others, continued the search. They were about to give up when, on 27 July, as she was going in search of cattle the witness detected a putrid smell. As she looked around to ascertain the source of the smell she observed some dogs fighting over something which turned out, on further investigation, to be a human skull – a child's skull. With the help of the dogs they located the body some three kilometers away from the homestead where the deceased had last been seen playing in a bushy area which was not easily accessible. What was left of the body was the lower part thereof from the waist downwards. They identified it as being that of the deceased by the pink dress which was still in a hole which contained water. The body appeared to have been dragged out of the hole by the dogs into the open where it was now visible.

This witness was adamant that there was no ladder at the homestead. Also she said that the tree where the deceased had been playing was so small that one could not lean a ladder on it.

Evidence was also heard from Tonderai Sandawu who is a son of the appellant's sister, Miriam Sandawu.

His evidence was to the effect that the appellant, who had been visiting his family since May 2011, when he came to pay condolences, had packed all his belongings and left their homestead on 17 July without bidding them farewell. He identified the black shorts found near the place of discovery of the deceased's body as belonging to the appellant.

A warned and cautioned statement made by the appellant and confirmed by a magistrate on 5 October 2011 was produced as an exhibit. In that statement he said:

“I admit that I killed a three year old child. I left Masiya area for Bande. I then came to a homestead where there was this child playing under a tree. On that tree there was a ladder that was leaning against it. I leaned against that ladder which then fell on top of the child who was playing under the tree and the child died. I lifted the child who had died and hid her a distance from her homestead. I did not rape her but I just lifted her and went with her thinking that she would come back to life but she did not. That is when I fled away.”

The oral evidence given by the appellant differs from what he said in his warned and cautioned statement.

In that statement, he stated, among other things, that the deceased was already dead when he carried her away from her homestead. That claim is in direct conflict with the evidence of Francisca Chirozva who said that two sets of footprints, that of a child and a man left the homestead. The court unreservedly accepted Francisca Chirozva's evidence.

The conclusion must therefore be that the deceased and the appellant walked some distance from the homestead before he carried her.

The appellant also told the court that he gave the police a false name when arrested for another offence in order to avoid being linked by the police with this offence.

The court found the appellant to be untruthful, in its words 'a hopeless liar'. It found that the State witnesses were truthful and that their evidence was clear and credible. It was alive to the fact that it was dealing with circumstantial evidence and it found that all the proved facts established that the appellant brought about the death of the deceased deliberately and not accidentally.

It therefore returned a verdict of murder with actual intent to kill.

The proved facts were that the appellant found the deceased playing at her home alone; that he took the deceased away from the homestead and brought about her death; that he then concealed the body in such a way that the first team of local villagers were unable to locate the body over a number of days; that the police attended the scene but failed to locate the body of the deceased; that the appellant deliberately concealed his involvement in the death of the deceased person, he tried to obviate any linking of himself to the offence by changing his name when he was arrested for a different offence; and that he was found by the court to have lied on material facts.

Counsel for the appellant was unable to fault the findings and reasoning of the trial court. He was unable to find any misdirection on the part of the court a quo.

This Court is also of the view that the trial court did not misdirect itself. It properly took into account all the relevant factors. The inference which it drew, namely, that the appellant deliberately brought about the death of the deceased, was consistent with all the proved or common cause facts and its conclusion that the appellant is guilty of the murder of the deceased with actual intent to kill is unassailable….,.

The appellant, his mother-in-law, and his wife were charged with murder; it being alleged, that, on 7 February 2003, they unlawfully and intentionally killed Ndakaziva Mapako at Arda Ingwizi Estate, Plumtree.

They pleaded not guilty, but, after a lengthy trial, the appellant was convicted of murder with actual intent to kill.

The other two were found not guilty and acquitted.

The trial court was unable to find extenuating circumstances. The appellant was sentenced to death.

This is an automatic appeal against both conviction and sentence.

The salient facts of the matter are the following:

The appellant's in-laws reside in Chiredzi. Shortly before the occurrence of the events surrounding the murder of the deceased, the appellant went to visit his in-laws. He told them that he could find employment for his father-in-law and requested the latter to accompany him to Arda Ingwizi Estates. The father-in-law declined the offer. The appellant was however able to persuade his mother-in-law to go to Ingwizi with him on the pretext that he was in a position to provide them with maize.

On 6 February 2003, the appellant and his mother-in-law, Mhlaba Hurudza were at Plumtree bus terminus intending to board transport to Arda Ingwizi Estates where the appellant was employed and resided. The deceased, who was in the vicinity, was heard enquiring about green mealies for purchase and resale. The appellant indicated that he could provide a source for the mealies and suggested that she come with them to his homestead. The deceased, who had a baby strapped on her back, accepted the appellant's offer.

She boarded the same bus as the appellant and his mother-in-law.

When they alighted at Bhulu bus stop, the appellant indicated that he wished to remain behind and gave them directions to his homestead. This was despite the fact that neither the deceased nor the mother-in-law knew the way to the compound.

They got lost and were assisted by a man who advised them that the appellant had fled the compound after being accused of theft. He took them to the appellant's homestead where they found his wife. The appellant did not make an appearance. They retired to bed in the same room.

Around midnight, the appellant came and knocked at the door to the hut in which they were sleeping. He indicated that the deceased should accompany him to the fields so that he could give her the mealies. She got up and left with the appellant. She took her baby with her.

She did not return to the compound.

At 4am, the appellant returned to his homestead. He told his family that he had to flee the area as he was wanted for theft. He gave his wife Z$500 and fled leaving his wife and her mother at the homestead.

Later that same morning, the appellant's wife and the mother-in-law learnt that the deceased had been found dead in the fields. Her child was found crying near the body of the deceased. The child was holding a piece of bread in one hand.

The pathologist who examined the body of the deceased compiled a report. The body was in the early stages of decomposition. An external examination revealed a stab wound on the left ear. The internal examination revealed fractures to the skull in the left occipital region and also the temporal region. There was massive subarachnoid haemorrhage of the brain. The cause of death was recorded as subarachnoid haemorrhage; multiple skull fractures; and assault.

The postmortem examination results revealed wounds consistent with having been caused by a heavy, sharp object.

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

In well-written heads of argument, counsel for the appellant conceded that the conviction was properly arrived at.

In our view, the concession is proper.

The evidence against the appellant was overwhelming.

The evidence of the appellant's wife and mother-in-law provided a link to the appellant as the perpetrator of the heinous crime.

The appellant lured the deceased to his homestead on the pretext that he was able to find her a source for green mealies. In the early hours of the morning, he lured her to the field and she was subsequently found dead.

He was the last person to be in her company.

Shortly after luring her to the fields, he fled from the area after an attempt to remove his family from the same area. In the morning that he left, he gave his wife Z$500. This was despite the fact that he was not employed and had no visible means of raising funds.

The deceased had come with funds to buy mealies.

After his arrest, the appellant made indications to the police leading to the recovery of a pair of blood-stained trousers. The blood on the trousers was tested and found to belong to group type B which was consistent with the blood group of the deceased.

The blood did not belong to the appellant.

It was submitted, on behalf of the State, that, the court a quo did not err in its assessment of the circumstantial evidence adduced against the appellant. The requirements for placing reliance on circumstantial evidence were met. In assessing the evidence, the court a quo made the following remarks:

“We accept that there was no direct evidence adduced in this Court concerning the death of the deceased. The court had to rely on circumstantial evidence. The law on circumstantial evidence was correctly summed up by WATERMEYER JA in the much celebrated case of R v Blom 1939 AD 188 at 202 and 203 when the learned judge referred to 'two cardinal rules of logic' which govern the use of circumstantial evidence in a criminal trial:

(1) The inference sought to be drawn must be consistent with all the proven facts…,.

(2) The proved facts should be such that they exclude every possible inference from them save the one to be drawn….,.

The proved facts in this case are that, contrary to his denials, the Accused 2 (appellant herein) in the company of Accused 1, met the deceased at Plumtree Bus Terminus on 6 February 2003. Accused 2 was a total stranger to the deceased and offered to show the deceased where green mealies were being sold.

Accused 2 and Accused 1, together with the deceased, boarded transport to Ingwizi Estate and disembarked at Bhulu bus stop where the deceased and Accused 1 were subsequently escorted home by Accused 2's homeboy, one Obvious Mutale.

During the middle of the same night, or in the early hours of the 7th February 2003, the Accused 2 knocked at the door to his home and told Accused 3 to awake the deceased so that he would go and sell her green mealies.

The following morning, the deceased was found dead and her child was seen wandering about close to the deceased's body.

The Accused 2, on gathering that the police were making enquiries about the demise of the deceased, gave Accused 3 Z$500 (Zim dollars) and tried to induce her and Accused 1 to immediately depart for their home area, despite him not having secured dry maize for the Accused 1 - the sole reason why he had travelled with her from Chiredzi.

The only reasonable conclusion we have unanimously arrived at, given this scenario, is the Accused 2 murdered the deceased to obtain money from her, which he knew she had, and which he desperately required, and, that given the cause of death, as captured in exhibit one, the Accused 2 must have intended the death of the deceased.”

It is our view, that, the court a quo correctly applied the principles of law enunciated in R v Blom 1939 AD 188 on circumstantial evidence and that the inferences that the court came to were consistent with the proven facts. The reasoning of the court cannot be faulted in any manner.

The conviction is unassailable.

The essential facts in the case are these.

In 2004, Sarah Msebele (Sarah), the mother of the deceased met the appellant in Ndolwane area in Bulilima. She was then employed as a temporary teacher. They fell in love and commenced a relationship. In 2006, the appellant persuaded her to leave employment and join him in South Africa. She agreed and left her employment and started living with him.

In October 2006, on their way to South Africa, the appellant was arrested by the South African authorities at the Beitbridge Border Post on allegations of armed robbery committed in South Africa. He was tried and sentenced to a lengthy term of imprisonment. At the time, Sarah Msebele was pregnant with the appellant's child. She subsequently gave birth to a son in 2007 but the child died two months after birth.

After the death of the child, Sarah Msebele moved out of the house that she shared with the appellant and got married to another man. The appellant was incensed by what he considered to be her betrayal. He started writing letters to Sarah, full of vitriolic language, from Leeuwkop Prison. During the murder trial, Sarah produced a total of nine letters which the appellant wrote to her vowing to punish her for her perceived betrayal. The appellant also accused her of having killed his child in order to enter into the new relationship. In one of the letters he threatened to harm her new husband. He also threatened to harm Sarah's mother whom he accused of using his money and influencing Sarah.

On 1 September 2010, the appellant was released from prison. On 8 October 2010, the appellant went to Butshe Business Centre in the Bulilima District where Phephelani Dube, Sarah's mother has a shop. He was wearing a face mask. The appellant proceeded to the home of Phephelani Dube. He smashed the windows of the bedroom where Phephelani Dube was sleeping with three of her grandchildren - one of whom was the deceased. He used a metal rod to strike her on the head demanding money. She gave him ZAR600= and BWP300=. She was holding on to the door in an effort to prevent him from entering the room. He continued to strike her demanding a cell phone. She gave him the cell phone. He forced his way into the bedroom and called Loveness, who is Sarah's younger sister, to come out of the room with him. Loveness complied and followed him outside. He told her to give him a cell phone if she wanted to save her life. She gave him two cell phones one of which he took and smashed on the ground. Shortly thereafter they both returned to the bedroom. The appellant struck Phephelani on her legs causing her to fall. She lost consciousness and sustained a broken leg as a result of the assault.

The appellant then called the deceased by his nickname (Mafana). At the time, the deceased was hiding under the bed. The deceased went to the appellant who disappeared with him into the night. Meanwhile, Loveness had alerted neighbours on what was happening. A search was mounted for the appellant and the deceased. The deceased's body was found in the morning in the bush about 7 kilometres from home. The body was engulfed by fire. When the fire was put out the skull was found to have been crushed. One of the legs was in pieces.

The post-mortem examination revealed the following bodily injuries:

(i) Fractured skull on the parietal region.

(ii) The body had sustained 90% burns.

The examination of the other internal organs was made difficult due to the degree of burns sustained.

In March 2011, the appellant visited his mother, Agness Dube. She told him of the murder of the deceased and he confessed that he had killed the deceased and burnt his body. He told her that he had killed the deceased to avenge the death of his son. He also told his mother that Sarah and her mother had squandered his money. He was hurt that Sarah had left him for another man.

During the same period in March the appellant started sending messages to Tsepo Msebele, Sarah Msebele's brother claiming a sum of ZAR80,000=, which he alleged Sarah owed him. He also demanded the return of property which he claimed Sarah had kept after leaving him. When the money was not forthcoming he began sending messages threatening that if the money was not paid he would do more harm than he had already done. Tsepo was then resident in South Africa. He, together with his friends effected a citizen's arrest on the appellant. They caused him to be brought to Zimbabwe and handed him over to the police. Upon his arrest, the police recovered the sim card from the cell phone which the appellant had taken from Loveness.

In a detailed and confirmed warned and cautioned statement, the appellant narrated his relationship with Sarah, and the events leading to the murder of the deceased. He also revealed the motive for the murder of the deceased. He gave a graphic description of the murder. This is what he said:

“I then took Blessing and went with him to the bush. I also took one phone with a Botswana sim card. I found a steel rod and took it with me. When I got to the bush I asked him whether he knew me? At first he said he did not know me, I said don't you know Michael; he said he knows me but he last saw me some time ago. I said Sarah did not tell you that I was in prison? He said she told him. Before I killed him I said these words - God will forgive me. I assaulted him on the head and at the back of the neck, he then fell down. I assaulted him again, I repeated again and he died. I fetched firewood and made a fire and threw him into the fire so that there would be no evidence. I put a lot of firewood. I burnt him myself and left the place and went to Tsholotsho and stayed three days. I then went to Bulawayo and stayed three days in Gwabalanda.”

Before the trial court the appellant denied having killed the deceased. He denied being in Zimbabwe during the relevant period. He alleged that he was in Mozambique. He also denied being the author of the letters in which threats were made to Sarah Msebele.

The court a quo did not believe him and rejected his alleged defence of alibi. The court also concluded that he had written the letters, and after a careful analysis of the evidence it found that it had always been his wish and desire to kill and that he had accomplished what he set out to do. The court said:

“The letters were full of obscenities, but there is a common thread that runs through them, that is the accused was bitter about being rejected and his desire to cause harm to Sarah Msebele and her family was clearly manifest in the letters. He was also bitter with Sarah's mother, whom he accused of influencing her. He clearly manifested through his letters the desire to inflict more pain and suffering on Sarah and her whole family than what he himself alleges to have suffered at the hands of Sarah. This he said he would do as soon as he was out of prison. He mentioned in some of the letters that he was about to be released from prison and would be fulfilling his desires and wishes.”

Accordingly, the court returned a verdict of guilty of murder with actual intent to kill.

Counsel for the appellant was constrained to concede that the appellant had not proved the defence of alibi. She also conceded that on the evidence the court had come to a proper conclusion as regards conviction.

In our view, the concession was proper.

The evidence against the appellant was overwhelming. The letters showed the motive for the killing of the deceased. As the trial court correctly found, the appellant was very bitter that the child that Sarah had given birth to had died and that soon thereafter she had married another man. He was unhappy at the thought that whilst he languished in prison she appeared to be unconcerned about him despite all that he alleged he had done for her and her mother. As a result, he kept warning her to make amends, leave her new husband or face the consequences.

The facts giving rise to the charge, of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], against the appellant were as follows.

The deceased was a child named Chipochashe Ndlovu. At the time of her death she was aged three (3). Her mother, Kudzai Dube, (Kudzai) was the appellant's common law wife. At the time of the deceased's death, the union was of recent duration. The deceased was not related to the appellant.

It is common cause that the deceased had been under the care of Netsai Dube, (Netsai), her maternal grandmother, since her birth. When the mother left to go and live with the appellant she took the child with her. She had not obtained permission, and, as a result, Netsai Dube searched for their whereabouts. She located them after two weeks and took the deceased home where she remained.

A few days before her death, Kudzai Dube begged Netsai Dube to let her take the child for some time. Kudzai Dube claimed that she missed the child. The grandmother agreed - reluctantly. Kudzai then left with the deceased.

On the fateful day, the appellant indicated to Kudzai Dube that he wanted to take the deceased with him to the bush to fetch firewood. Kudzai refused to allow him to take the deceased. The appellant threatened to assault her. She then agreed - reluctantly. The two then left.

An hour later, the appellant returned carrying the deceased on his shoulder. She was unconscious. The appellant placed her in the bedroom hut. The appellant then informed Kudzai Dube that the deceased had suffered an epileptic fit whilst they were in the bush. Kudzai went to check on the deceased. She observed fresh bruises on the deceased's right forehead. There was blood and froth coming out of the child's mouth. She checked for a pulse and found none. She deduced that the child was dead and went to inform her neighbor, Makazviita Munengewa, of the situation.

The appellant and his brother then transported the deceased to Netsai Dube's homestead. They arrived during the night and placed the child in a hut. Unaware, the following morning Netsai proceeded to her garden from where she was summoned after a short while. On returning home she discovered that the appellant had brought the deceased's body to her homestead the previous evening. The appellant was not present. A report was made to the neighbourhood watch committee who informed the police.

The police attended and advised Netsai Dube to convey the body to the hospital immediately due the state of decomposition that had set in. Netsai decided to clean the body of the deceased before it could be conveyed to the hospital. During the process, she observed injuries on the deceased which led her to conclude that the child had been sexually molested.

The appellant was arrested shortly thereafter.

At the hospital, the body of the deceased was examined by Winnie Gumbo, a State Registered nurse. The nurse observed injuries which also led her to form the opinion that the deceased had been sexually molested. A few days later, a pathologist, Dr Pesanai, conducted a post-mortem examination and compiled a report. The body was swollen due to decomposition. The post mortem examination was unable to establish the exact cause of death. The pathologist was able to amplify the report during the trial.

His conclusion was that the cause of death was a laceration to the rectum resulting from the rape and the sodomy.

Both in his Defence Outline and in the warned and cautioned statement, the appellant denied killing the deceased. He also denied having sexually assaulted her.

In his warned and cautioned statement, which was confirmed before a magistrate, the appellant stated that he took the deceased to the nearby bush to look for firewood. He sat her on a footpath while he fetched firewood. After a while, he observed that she had fallen to the ground. He suspected that she had suffered from epileptic fits. He denied having caused her death.

In the Defence Outline, he stated that the deceased had accompanied him to the goat pen within the homestead. She sat on a path whilst he fetched firewood. When he looked at her next, he observed that she was having fits. She was frothing from the mouth and had fallen to the ground. He picked her up and carried her to the homestead where he placed her in one of the huts. She died later on the same day.

The court a quo concluded that the appellant had taken the toddler into the bush with him for the sole purpose of killing her. In coming to this conclusion, the court had regard to the evidence of several witnesses who had access to the body before it decomposed.

Amongst the witnesses were the two police officers, Simbarashe Makopa and Freedom Nyamutsamba, who attended at the deceased's grandmother's homestead in reaction to a report of rape and murder. They found the deceased's body lying in a bedroom hut. Upon examination of the body, they observed bruises on the right side of the head, the back, the forehead, and the abdomen.

The trial court also took into account the evidence of the grandmother, Netsai Dube.

She had cleaned the body and had observed that the deceased had bruises on the back and lower abdomen. The body was swollen on both sides of the neck and there was froth coming out of the deceased's mouth and nose. Her genitalia was described by the witness as “open” and there were traces of faeces. From the injuries she observed, Netsai suspected that the deceased might have been sexually abused. Like the other witnesses, she had also observed bruises on the deceased's back. The witness discounted the suggestion by the appellant that the deceased had suffered from epileptic fits, and, further, that she had died from a bout of fits.

In addition, the court had regard to the evidence of the nurse who saw the body upon its delivery at the mortuary after its recovery by the police. This witness testified that the corpse had fresh bruises on the right eye, fresh bruises on each side of the abdomen just above the groin and a fresh bruise at the back. The nurse said the bruises on the abdomen, back and right eye made her conclude that force had been applied to those areas using fingers. There was also a fresh bruise just between the lumber and sacral region of the back. An examination of the genital area revealed bruising on the labia majora as well as bruises on both sides of the labia minora. Although the hymen was intact, the nurse was of the opinion that penetration had been effected.

Her evidence was that the deceased had been sexually abused. At the time of these events, she had been a nurse for twenty-five years. The trial court found her to be a fair witness with no axe to grind against the appellant.

The court also considered the evidence of Kudzai Dube, the deceased's mother.

She confirmed what the appellant stated in his extra-curial statement that he had taken the child to the bush on the pretext that he was going to look for firewood in the bush. The deceased was in good health and had never suffered from epileptic fits. Two hours later, the appellant returned. He was carrying the deceased on his shoulder. She was bleeding from the nose. In addition, she was frothing from the mouth. She denied that the deceased suffered from epileptic fits as claimed by the appellant.

The pathologist examined the body of the deceased on 25 September 2013. A period of five days had elapsed from the time of death.

The pathologist observed a small laceration measuring 0.5 cm on the child's genitals. The anus was dilated and there was a laceration inside the rectum itself. The skull plates were open and had separated. Due to decomposition, no obvious cause of death was observed. However, the examination showed that the child had been sexually assaulted. There was penetration of the genitalia which went through the anus causing the laceration in the rectum.

The pathologist candidly admitted that the body was in an advanced state of decomposition. He was unable to discount the effects of decomposition on the body. What was certain, however, was the fact that the child had been sexually assaulted both through the vagina and the anus.

The assault through the anus caused the laceration in the rectum which he reported on. His evidence was that the rectum is in the same line with the intestines. These are strong organs capable of expanding. The rectum, like the intestines, can take more pressure than other organs. Because of the ability to withstand force, the laceration in the rectum could only have come about through the application of force, in this case, a rape. As a result, he discounted the possibility of the laceration in the rectum having been caused by decomposition. It was more likely that the cause of the laceration was due to sexual assault.

On these facts, the appellant was convicted of murder with actual intent to kill….,.

The grounds of appeal are aimed at the sentence. They do not challenge the conviction. Nevertheless, it is appropriate to consider the appropriateness of the conviction before dealing with the appeal against sentence.

On behalf of the appellant, counsel submitted that the circumstances surrounding the commission of the offence were such that it was difficult to challenge the appellant's conviction on the charge of murder with actual intent to kill. He set out for the benefit of the court those factors which, in his opinion, confirmed the correctness of the finding of guilt of murder with actual intent by the trial court.

He said that the appellant floundered when asked to give a reason why he wanted a three-year-old minor to assist him in fetching firewood. Protests from the deceased's mother against the proposal were met with threats of physical assault from the appellant. When the appellant returned with the deceased he made no attempt to get any sort of help for the deceased - even though he claimed that she was unconscious and not dead. This belied his assertion that she had suffered epileptic fits when he took her to the bush to fetch firewood. He then proceeded to prepare food for himself in the same hut that he had placed her. He was completely unmoved by the lifeless body of the deceased and he proceeded to eat in the same hut.

The trial court concluded that the appellant intended to kill the deceased.

The finding by the trial court, as to intent, was to the effect that the appellant desired to kill the deceased. This form of mens rea is what is commonly referred to as dolus directus. In his book, Principles of Criminal Law, 5^th ed…, the learned author, JONATHAN BURCHELL defines dolus directus as follows:

“This is intention in its ordinary grammatical sense: the accused meant to perpetrate the prohibited conduct or to bring about the criminal consequence. This type of intention will be present where the accused's aim and object was to perpetrate the unlawful conduct or to cause the consequence even though the chance of it was small.”

The question whether the appellant killed her with actual intent is a factual one. The determination of the issue of mens rea must relate to the facts surrounding the commission of the offence with which the appellant was charged and convicted.

The evidence against the appellant is largely circumstantial.

From the evidence, she had been brutalised. She had also been sexually abused. She died from injuries as a result of the sexual abuse. He was, on his own admission, the last person to see her alive. He admitted, in his warned and cautioned statement, that when he returned home with her she was unconscious. When he took her from her mother she was walking on her own two feet. The only inference is that he was the one who abused her sexually resulting in the state that she was in upon their return to the homestead.

The issue for determination, therefore, is whether or not the court a quo was correct in its conclusion that the only possible inference in the circumstances of this case is that the appellant killed the deceased with an actual intent to kill her.

The test on inferential reasoning was set by WATERMEYER JA in R v Blom 1939 AD 188. It was stated therein that there are two cardinal rules of logic in such enquiry. At pp 202-3, the learned jurist said the following:

“In reasoning by inference there are two cardinal rules of logic which cannot be ignored:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

In this case, the proven facts are the following;

The deceased's body was in such an advanced state of decomposition that the pathologist was unable to establish the exact cause of death. As a result, the postmortem report is silent as to the actual cause of death. However, the tenor of the evidence of the witnesses who saw the deceased shortly after the appellant brought her home from the bush bears testimony to the application of force to her body as well as her private parts.

In view of the evidence of the pathologist, that the proximate cause of death was the laceration to the rectum, the question before the court is whether, by raping the deceased in the manner described by the pathologist, the appellant meant to perpetrate the prohibited conduct or bring about the criminal consequence.

The prohibited conduct in this case is the murder of the deceased by the appellant. Did he mean to cause her death in acting as he did?

In R v Kewelram 1922 AD 213, the court had to consider whether an accused person charged with setting fire to his stock in order to defraud an insurance company had been properly convicted of arson by a jury in relation to the store in which the stock was. The building itself belonged to someone else. At p 216, INNES CJ resolved the question in this manner:

“The jury were satisfied that the accused must have realised the consequences of his action. Realising that the fire must spread from the stock to the building, he, for his own fraudulent purposes, set fire to the stock. Under these circumstances, the inference of a wrongful intention to burn the store was amply justified. Nor did I understand that Mr Hoexter seriously disputed that proposition. He contended that although an intention to burn the store might be implied, it did not follow that there was an intention to injure the owner. The latter, it was suggested, might have been over-insured and the intentions might have been to benefit him. But motive, in most cases, can be gathered from action. And the wrongful and deliberate setting fire to the building of another is an act from which it is legitimate to deduce an intention to injure that other. Such a deduction is founded upon a knowledge of human nature and of the ordinary course of human affairs. The inference may be disproved by the wrongdoer; but unless disproved it stands.”

In R v Mashanga 1923 AD 11, INNES CJ affirmed the approach of the court in R v Kewelram 1922 AD 213 in the following terms:

“Now, to constitute the crime of malicious injury to property, malice is a necessary element. But by that is meant legal malice, not necessarily personal spite against the owner of the injured property. All that is necessary in our law to the constitution of the crime is an intentional wrongful injury to the property of another. Upon proof of the wrongful intention, the Court will presume malice; that presumption may be rebutted, but until displaced it stands. As Mr Fischer said, the matter has really been concluded by our decision in Rex v Kewelram (1922, A.D. 213). It was there laid down that to support an indictment it was not necessary for the Crown to establish the existence of a specific intention to injure the owner of the property, but that such intention could be inferred from the realisation of the fact that the burning of stock in a building would result in the burning of the building.”

The evidence on the injuries observed on the body of the deceased paints a horrific picture of the agony that the appellant put the deceased through.

The deceased was aged three (3). She was virtually a baby. She should not, by any stretch of the imagination, have been considered an object of sexual desire. She walked from the homestead but returned lifeless - a mere hour later. She was on the appellant's shoulder. She was bleeding from the nose and had froth coming out of her mouth. In the absence of a pre-existing condition, the nose bleed was most probably caused by the application of force to that part of her face causing the nose to bleed.

The nurse who admitted the deceased's body observed fresh bruises on the right eye. There was also bruising on each side of the abdomen. The grandmother observed swellings on both sides of her neck. In my view, the injuries point to the application of force around her throat resulting in her frothing from the mouth. Taken together, these injuries suggest that the deceased was lying with her face on the ground. In order for the appellant to perpetrate the rape per anum the deceased would have to be lying on her stomach.

Both witnesses described bruising on the back. The open genitalia which had faeces confirms that she was raped, and, further, that after sodomising her, at some point, he perpetrated a frontal assault leaving faeces in the genitalia. From the bruises and injuries observed on the body, it was the conclusion of the pathologist that the deceased had been sexually abused both per vaginum and anum. As a result of the sexual abuse there was a laceration in the rectum. A laceration of this nature would cause bleeding which could be fatal.

She died as a result of the assault.

The evidence on the sexual assault leads one to conclude that the appellant intended to rape and assault the deceased. In order to give effect to his intent, the appellant took her to the mountains against the will of her mother. He subjected her to such a vicious sexual assault that he tore her insides causing her to die from the injuries inflicted from the assault.

Given the age of the deceased and her body size, it can be said that the death of the deceased was the appellant's aim and object. He could not give a reason why he wanted a three-year-old juvenile to accompany him to the bush to fetch firewood. When her mother indicated her unwillingness for the child to accompany him he threatened her with physical assault. He kept her in the bush for two hours only to return with her lifeless body on his shoulder. He callously laid her body in the kitchen hut where he proceeded to prepare food for himself and eat it. He made no attempt to obtain medical assistance for her - even from the child's own mother. He then surreptitiously conveyed her to her grandmother's homestead for burial during the night. He made no effort to advise the grandmother of the child's passing.

It is also common cause that he and Kudzai Dube had previously taken the deceased away from the grandmother's home without permission. The grandmother was only able to locate her after two weeks.

A wrongdoer is presumed to have intended the natural consequences of his actions.

In view of her age, her small body and the manner in which he perpetrated the sexual assault on her, it is clear that the appellant contemplated and foresaw that the deceased would sustain serious injuries that would have irreparably and extensively damaged her small undeveloped body. It must have been in his contemplation that her pubescent body could not withstand such an assault and that serious harm would be occasioned to her from the assault. As a consequence, he must be presumed to have intended to cause her death. The only inference is that he abused her sexually and that he foresaw her death from the assault.

Given the proven facts, it is inevitable to conclude that, in the eyes of the law, he intended to kill her and he, in fact, desired her death.

I am satisfied, on these facts, that the appellant was properly convicted of murder with an actual intent to kill the deceased….,.

Accordingly, it is ordered as follows:

As stated by the learned authors HOFFMAN and ZEFFERT, The South African Law of Evidence, third edition, Butterworths,…,:

“In R v Blom, WATERMEYER JA referred to two cardinal rules of logic which governed the use of circumstantial evidence in a criminal trial:

1. The inference sought to be drawn must be consistent with all the proved facts. If it is not then the inference cannot be drawn.

2. The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

Given the results of the post mortem report, the only probable cause of the now deceased's fatal injuries point to an assault, which assault was perpetrated by the accused persons. From the evidence placed before us there was no novus actus interveniens that might have broken the chain of causation which would explain the now deceased's injuries.

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].

The charge is that on 4 December 2015, at Maluzo Village, Chief Mazetese, Mwenezi in Masvingo, the accused unlawfully caused the death of Nyashadzashe Moyo by stabbing him with an okapi knife once on the left side of the abdomen and once at the back.

The accused and the 21-year-old deceased lived in neighbouring villages and were well known to each other. Apparently they also once worked together at Mkwashi Ranch in Gwanda. The now deceased was once employed at Mkwashi Ranch as a grinding mill attendant and when he left employment the accused took over that job. The now deceased stayed with his grandmother, Violet Moyo, and his siblings.

The allegations against the accused are that on 4 December 2015, the accused and the now deceased met along a foot path from Kabhora Shops and that they had an unspecified misunderstanding. The accused is alleged to have produced an okapi knife and stabbed the now deceased on the left side of the abdomen thereby eviscerating the small bowel. As the now deceased tried to flee he was allegedly chased after and stabbed for the second time on the left side of the back near the midline. The now deceased is said to have trudged home and managed to make a report to his grandmother, Violet Moyo. The accused is said to have proceeded to his workplace at Mkwashi Ranch. The now deceased was ferried to Masase Mission Hospital but died on admission.

The post mortem conducted by Doctor Pesanai revealed the cause of death as haemorrhage shock and perforated left illiac vessel due to stabbing.

The accused denies attacking the now deceased in the manner alleged or in any manner.

In his Defence Outline, the accused said the now deceased harboured a grudge against the accused as the now deceased alleged that the accused had caused the now deceased to be dismissed from employment as a grinding mill attendant and went further to take that job. The accused said, as a result, whenever he met the now deceased, the accused would be threatened with assault. The accused went further to state that on 2 November 2015 he met the now deceased and was assaulted resulting in the accused losing his tooth.

Turning to the events of the day in question, on 4 December 2015, the accused said he left his workplace going to Kabhora Business Centre where he found the now deceased present. The accused said the now deceased threatened to kill the accused forcing the accused to flee back to his workplace. At his workplace, the accused said he advised his supervisor, one Mpilo Ndlovu, about the now deceased's threats. The accused said he was surprised the next day, on 5 December 2015, when police arrested him on the allegations that he had killed the now deceased. The accused said he protested his innocence to the police despite being severely assaulted by the police. The accused said he never assaulted or stabbed the now deceased.

In support of its case, the State led evidence from Violet Moyo, Lovemore Zhou, Mpilo Ndlovu, Cornelius Moyo and Sgt. Hilda Grace Chitemere….,.

The accused gave evidence and did not call any witnesses….,.

The following material observations and findings were made by Dr. Pesanai;

(a) The now deceased had a stab wound on the left abdomen measuring 4x2cm situated 5cm from the midline and 8cm from the pubic bone with evisceration of the small bowel.

(b) A stab wound on the left side of the back measuring 5x2cm situated 5cm from illiac crest and 5cm from the midline at the back.

(c) Perforated illiac vessel.

(d) Retroperitoneal haematoma (the membrane covering the bowel) with about 500ml of blood and blood clots in the abdomen containing about 250ml of blood.

(e) The doctor concluded that the cause of death was haemorrhagic shock and perforated left illiac vessel arising from the stab wounds.

The contents of the post mortem are not in issue.

Our view is that the nature of the injuries on the now deceased are consistent with the use of a knife or a sharp object, which is inherently a dangerous weapon. The injuries clearly reflect that the attack was grisly, brutal, and savage. The blows were clearly directed at the vulnerable parts of the human anatomy. Even the dimensions of the wounds inflicted reflect the severity of the attack. The small intestines were disembowelled. This is consistent with the use of or application of severe force. It may well be that the injury or stab wound at the back was inflicted as the now deceased tried to flee. The intention of the person who inflicted these injuries on the now deceased, in our view, is clear. It was to kill or cause death. This can be inferred from the nature of the weapon used, the part of the body the stab wounds were inflicted, the number of blows delivered, and the sheer intensity and viciousness of the attack.

We are therefore inclined to conclude and make a finding that whoever inflicted those injuries on the now deceased desired death to result or did forsee the death of the now deceased as substantially certain in the circumstances but nonetheless inflicted those injuries.

The question this court has to resolve is; who inflicted those injuries on the now deceased? This is a factual rather than a legal issue.

In order to resolve this question, we turn to the evidence placed before us by both the State and the defence.

THE STATE CASE

1. Dr Pesanai

The evidence of Dr Pesanai is simply to the effect that he examined the now deceased's body and compiled the post-mortem report. This evidence is not contested.

We turn to viva voce evidence….,.

4. Mpilo Ndlovu

Mpilo Ndlovu (Mpilo) is employed at Mkwashi Ranch as a supervisor. The accused is a grinding mill attendant at his workplace and the now deceased used to work under him as a grinding mill attendant before the now deceased left employment in October 2015 and that job was taken up by the accused.

Mpilo said on the day in question, 4 December 2015, the accused asked for permission from him to go to the shops across the river in the area where the now deceased stayed which shops are about 3–4km away. He granted the accused permission and the accused left around at 14:00 hrs. Mpilo Ndlovu said upon his return, at about 15:00 hrs, the accused, who appeared not to be himself, reported to Mpilo that, he, the accused, had injured one Nyasha, the now deceased, by stabbing him with a knife. The accused went further to say he had stabbed the now deceased as the two fought and the now deceased had chased after him. He said the accused did not, however, disclose the exact nature of the injuries he had inflicted on the now deceased. Mpilo Ndlovu said he excused the accused from work and told the accused to proceed to his home to advise his parents what he had done. The accused left the workplace the next day, 5 December 2015, but did not return as he had been arrested in connection with the deceased's death.

Under cross examination, Mpilo said he was not aware of any animosity between the accused and the now deceased. He insisted that it is him who advised the accused to go to his home and advise his parents about the injuries the accused had reported he had inflicted on the now deceased. Mpilo Ndlovu identified Exhibit 1, the okapi knife, as similar to a knife the accused possessed.

Mpilo Ndlovu's evidence was largely unchallenged and we accept his testimony.

5. Cornelius Moyo

Cornelius Moyo (Cornelius) is the accused's mother. She confirmed that on 5 December 2015 the accused came home from his workplace but she said the accused did not disclose the purpose of his visit. She assumed the accused had just visited his wife. She however said the accused was arrested by the police the same day on murder allegations and taken away.

Later, she said the accused returned with the police looking for an okapi knife, Exhibit 1. The accused had disclosed to the police that he had put the knife in a playing drum (ngoma in Shona). Cornelius Moyo said she had discovered the knife in the playing drum and was unaware as to who had put it there. She said she suspected her enemies had done so hence she had removed the knife and buried it in her yard. She then retrieved it and gave it to the police who were with the accused. Cornelius denied that the accused had reported to her, on arrival home that he had injured or fought with the now deceased but that she only learnt that from the police at the time of the accused's arrest.

No material questions were put to her in cross-examination….,.

6. Sgt. Hilda Grace Chitemere

Sgt. Hilda Grace Chitemere (Sgt Chitemere) is based at ZRP Mberengwa police station and is the officer who initially investigated this case. She later handed it over to ZRP Mwenezi as the scene of crime fell outside Mberengwa District but in Mwenezi, Masvingo.

She explained the initial investigations she carried out.

Sgt Chitemere said after being assigned to the case, on 4 December 2015, she and other details proceeded to the scene of the crime on 5 December 2015 at Kabhora Business Centre. As a result of investigations, she gathered that the accused was the now the deceased's assailant and the accused was arrested at his home the same day. Upon the accused's arrest, she warned and cautioned the accused of the charge explaining his rights. Sgt Chitemere said the accused offered to explain to her what had happened. Sgt Chitemere said the accused offered to take the police to the scene of the crime where she observed signs of a struggle and trail of blood. On inquiring from the accused what had happened at this place, the accused disclosed that he had stabbed the now deceased with a knife twice on the abdomen and the back. The trail of blood indeed was from the scene of crime to the now deceased's homestead and it was clear to her the now deceased had lost a lot of blood. She said she inquired from the accused where the knife he had used to stab the now deceased was and the accused said he had thrown it into a dam. As a result, she did not recover Exhibit 1.

Sgt. Chitemere said the accused further explained to her that he, the accused, had met the now deceased along a path as they were going in different directions and that the now deceased had, without cause, assaulted the accused and that the now deceased is the one who was in possession of the knife which he, the now deceased, tried to use to stab the accused but the accused apparently dispossessed him and stabbed the now deceased in the stomach and the back as they struggled after which the accused left the scene with the now deceased struggling to walk. The accused also revealed to her that the accused had made a report to the accused's supervisor, one Mpilo Ndlovu. Sgt Chitemere said she believes details from ZRP Mwenezi later recovered the knife, Exhibit 1. According to Sgt Chitemere, the injuries she observed on the now deceased's body were consistent with the accused's explanation to her. She observed that the stab wound on the now deceased's back was more deep.

Under cross examination, Sgt. Hilda Grace Chitemere denied that she assaulted the accused. She said that the accused's disclosure of allegedly throwing the murder weapon, the knife, into the dam was made to her by the accused voluntarily and that she had believed the accused.

We do not share the view that Sgt Chitemere was an untruthful witness. The version she said the accused told her sought to blame the now deceased for the cause of the altercation between the accused and the now deceased. She accepted the accused's version that he had thrown away the knife into a dam. This is hardly the evidence of a witness who sought to falsely incriminate the accused.

The accused's evidence

The accused maintained that he enjoyed bad relations with the now deceased because the now deceased, who had been dismissed from work, blamed the accused, moreso as the accused later took over the same job.

Turning to the events of the day in issue, the accused, in his evidence, said as he was coming out of the shop at Kabhora Business Centre, the now deceased waylaid him by the doorway and slapped him once saying the accused should leave his employment. The accused said he fled from the shops without fighting back in any manner.

The accused denied stabbing the now deceased.

The accused admitted that the knife, Exhibit 1, belongs to him and that he had put it in a drum on account of a dream he had had well before this incident. The accused said Mpilo Ndlovu, his supervisor, lied in evidence because they once dated the same woman. The accused said the police assaulted him forcing him to admit to the offence.

Under cross-examination, the accused said despite being attacked by the now deceased on the first occasion, in October 2015, and losing two (2) teeth, he did not report to the police as he was not aware such an attack was unlawful. Instead, he said he reported to Mpilo Ndlovu about the first attack and was advised to leave the now deceased.

Unfortunately, this was never put to Mpilo Ndlovu in cross examination.

The accused said he did not, again, report to the police the attack on 4 December 2015 when the now deceased slapped him at the shops but simply fled and made a report to Mpilo Ndlovu. The accused disputed the nature of the report he made to Mpilo Ndlovu. The accused alleged Mpilo Ndlovu falsified his evidence on account of the fact that they dated the same woman. However, this was not put to Mpilo Ndlovu in cross-examination and the accused said he unfortunately forgot to advise his counsel of this material evidence.

The accused insisted that he did not know who fatally injured the now deceased.

ANALYSIS OF EVIDENCE

There are indeed differences between the accused's Defence Outline and his evidence-in-chief (or under cross-examination).

While in the Defence Outline the accused said the now deceased assaulted him on the first occasion and caused the accused to lose one tooth, in his evidence he said he lost two teeth. It is difficult to appreciate how the accused can be mistaken as to the number of teeth he lost when the now deceased allegedly first attacked him, either in October or November 2015. We find it to be incredible that the accused would simply decide not to report such a serious attack to the police after he had lost either one tooth or two teeth. If such an attack was reported to Mpilo Ndlovu surely this should have been put to Mpilo Ndlovu who told the court that he was not aware of any bad blood between the accused and the now deceased.

The version the accused gave on what happened when he met the now deceased on 4 December 2015 is different in his Defence Outline and in his evidence.

In his defence, the accused said when he met the now deceased at Kabhora Business Centre, on 4 December 2015, the now deceased threatened to kill the accused and that the accused fled from the Business Centre going to his workplace where he advised Mpilo Ndlovu of the threats. In his evidence, the accused was now heard to say when he met the now deceased at Kabhora Business Centre, on 4 December 2015, the now deceased waylaid him by the door of the shop and slapped him once.

The accused cannot be confused as to whether the now deceased merely threatened to kill him or slapped him.

We are also not convinced by the accused's belated explanation, which only emerged in the accused's evidence, that the accused and Mpilo Ndlovu dated the same woman. Mpilo Ndlovu was clear in his evidence that he enjoyed good relations with the accused and no motive was put to him as to why he would falsely incriminate the accused. Indeed, the accused could not have failed to advise his counsel of such a crucial and material aspect of Mpilo Ndlovu's evidence.

The only inference we can draw is that this issue of dating the same woman with Mpilo Ndlovu is an afterthought.

The explanation by the accused on why he put the knife, Exhibit 1, in a drum is, at most, bizarre if not incredible. It is a muddled up explanation steeped in the superstitious spiritual world and does not make sense. This is further made worse by the fact that the accused's mother, after the accused's arrest, decided to bury the same knife in the yard. The simple clear explanation is that the accused decided, rationally, to hide the knife he had used to stab the now deceased and upon his arrest his mother also decided to dispose of it.

There is, indeed, no eye witness to the attack of the now deceased but our view is that the circumstantial evidence placed before us point to the accused as the assailant. There a number of factors which point to this finding and they are as follows;

(a) The now deceased made a dying declaration to Violet Moyo and Lovemore Zhou that he had been fatally stabbed by the accused. When the now deceased identified the accused as his assailant he was on his deathbed. A dying declaration is admissible in our law. See Criminal Procedure in Zimbabwe by JOHN REID ROWLAND…,.

(b) The accused admits that he indeed met the now deceased on the fateful day, on 4 December 2015, and that he had an altercation with the now deceased. It cannot be just coincidental that the now deceased thereafter is seen with severe and fatal injuries.

(c) The accused made a report to Mpilo Ndlovu that he had seriously injured the now deceased. Mpilo Ndlovu cannot be mistaken as to the nature of the report the accused made to him to the extent of excusing the accused from work to go to his rural home.

(d) The murder weapon, the okapi knife, Exhibit 1, belong to the accused. Worse still, the accused initially lied to the police where it was and had concealed it in a drum at his rural home.

(e) The accused's own evidence is riddled with inconsistencies and falsehoods.

All these factors, taken together, lead to the only one inference which point to the accused as the assailant. The accused's guilt is beyond reasonable doubt.

We cannot take seriously counsel for the accused's submissions, in his closing written submissions that the accused acted in self-defence.

This is new evidence which was never led in court at any stage by the accused. It is unfortunate that counsel for the accused believes the accused can plead in the alternative as if these were civil proceedings. The sum total of the accused's defence, taken to its logical conclusion, would imply that the accused is saying;

“I did not stab the now deceased at all, but, in the alternative, if I indeed stabbed him I did so in self-defence!”

This is not only untenable but shockingly unprofessional for the defence counsel to do - moreso in closing written submissions.

We are satisfied, beyond reasonable doubt, that it is the accused who fatally stabbed the now deceased. From the evidence before us his intention was to kill the now deceased.

VERDICT:

The accused person is facing a charge of rape and another of murder in contravention of sections 65 and 47 of the Criminal Law Code [Chapter 9:23]; the allegations being that on 27 August 2010, and at, or next to, a tributary that flows into Jeqe River in Esikhoveni, Esigodini, he wrongfully, unlawfully and intentionally had sexual intercourse with Simangaliso Ncube, a female juvenile then aged fifteen (15), without her consent and thereafter unlawfully and intentionally killed her.

It is alleged that the deceased and the accused were residents of Vukuzenzele One Village in the Esikhoveni Area of Esigodini. The deceased lived with her grandmother, one Gladys Masuku, who was then aged 73. The accused, who was then aged 30 years, had offered to give Gladys Masuku some vegetables from his garden.

On 27 August 2010, while Gladys Masuku was away from home, the accused proceeded to her homestead, where, upon arrival, he asked the deceased to accompany him to his garden to collect vegetables for her grandmother. When they got to a tributary along Jeqe River, the accused grabbed the deceased and pushed her to the ground forcing her to lie on her back, raised her skirt and removed her panties, before raping the deceased. After the act of rape, the accused throttled the deceased until she became unconscious. Thereafter, he used a stone to strike the deceased a number of times on the face. After doing that, the accused allegedly picked up another stone which he placed on the deceased's chest before making good his escape. The deceased's body was only discovered at the scene two days later, on 29 August 2010.

The accused person pleaded not guilty to both charges of rape and murder.

In his Defence Outline, he stated that he had a blackout, as he sometimes did, at the time. He cannot state how the offences were committed but was only informed of his actions by the police and his relatives. The accused went on to say that he has no recollection of what transpired owing to the blackout. He re-iterated that he has a long history of mental illness which he may have inherited from his late mother who also suffered from mental illness. He has been treated for the mental disease, mainly by traditional healers, and, at times, he was attended to at Esigodini Hospital.

The bulk of the evidence of the State was admitted by the accused person in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it appears in the State Ooutline. That is the evidence of Alice Masuku, Sibongile Tshuma, Philip Mwinde and Doctor A. D Casteiianos.

We shall deal first with that evidence which was admitted.

The evidence of Alice Masuku is to the effect that she was nine (9) years old at the time the deceased, who was her cousin, met her death. The accused person was their neighbour. On the morning of 27 August 2010, the accused person had come to their homestead and inquired about the whereabouts of her grandmother as he wanted to give her some vegetables. When the accused was advised that her grandmother had gone to a wedding ceremony at Bambanani Business Centre, he insisted on the deceased accompanying him to his garden to collect the vegetables. Initially, the deceased refused to go with the accused suggesting, instead, that the witness and Simelweyinkosi Phiri should accompany him. The accused was however adamant that he wanted the deceased to come with him constraining the deceased to comply. The deceased never returned and when her grandmother came back that afternoon, the witness told her that the deceased had left home in the morning proceeding to the gardens.

Sibongile Tshuma's admitted evidence is that the deceased was her niece and the accused stayed in the same village as herself and the deceased. On 27 August 2010, Gladys Masuku came to her home in the evening to inform her that the deceased had not returned home from the gardens. The two of them looked for the deceased that evening without success. She is the one who discovered the body of the deceased on 29 August 2010. She observed that the deceased was lying on her back and had injuries on the face. There was a big blood-stained stone on her chest and her grey panties were a few metres away from the body.

Philip Mwinde is a police officer stationed at Zimbabwe Republic Police, Esigodini. He witnessed the recording of the accused's warned and cautioned statement on 1 September 2010.

Dr Casteiianos is the pathologist who conducted the post mortem on the body of the deceased and compiled a report, exhibit 3. That report records that the deceased suffered multiple deep wounds on the face and multiple bruises all over the body. Her skull had a depressed fracture with brain laceration. In addition, the doctor observed evidence of sexual abuse, namely, the hymen had lacerations on the vagina entrance, as indicated, with haemorrhage. There was also semen. She concluded that the deceased was raped before she died.

Gladys Masuku is the grandmother of the deceased who lived with her. Her evidence was corroborative of that of the other admitted evidence. She is a neighbour of the accused. She never requested, and was not promised, any vegetables by the accused. She would not want any because they had their own garden of vegetables. The deceased was an exceptionally well-behaved child. Gladys added that the accused used to attend church and had no history of mental illness whatsoever. She knew him very well from the time that he was born. Although she interacted regularly with the accused, he never showed any signs of mental disorder.

Gift Mapfunde is an Assistant Iinspector in the police force and was the investigating officer in the case.  He stated that after receiving a report of a missing person, they looked for the accused but could not locate him as he had disappeared from the village. When he was finally arrested, he exhibited signs of shabbiness and unkemptness consistent with someone who had been sleeping in the bush and had not taken a bath for days. As far as he was concerned the accused had no mental illness.

The State witnesses gave their evidence very well, in a dignified and credible manner. We have no reason to disbelieve them, and, accordingly, embrace their evidence.

That compliment cannot, regrettably, be extended to the accused person who tried to feign mental illness but failed dismally. Although he claimed that he had a history of mental illness and suggested that when he committed the offences, he was in a state of automatism there was nothing, other than his say so, pointing to such illness. He was examined by two medical doctors whose reports point to no signs of mental illness. Although he claimed to have been a patient at Esigodini and Ingutsheni Hospitals, not a single medical record was produced. In fact, when asked about his medical records he claimed that they were destroyed in a fire caused by his deranged mother.

As it turns out, his mother died in 1992 and even if he were to be believed that would mean that the fire she started must have occurred 18 years before the offences. It means, therefore, that he did not gather any other medical record during that period. It is clear that the accused was not being truthful and that the issue of mental illness was an afterthought and his desperate effort to try and escape the consequences of his conduct.

In any event, his confirmed and warned and cautioned statement, which he submitted to the police on 1 September 2010, was produced. In that statement he stated:

“I admit to the charges of raping and killing Simangaliso Ncube. I left my homestead on 27 August 2010 at around 1100hours and got to Alice and Simangaliso's place of residence. I found them in the house. I asked the whereabouts of their grandmother, MaKhanye. Simangaliso said she had gone to a wedding. I then asked Simangaliso to go with me to the garden so that I can give her some vegetables. We went together, myself and Simangaliso, but we did not go to the garden. We crossed Jeqe River and joined a stream which is from the mountain. Whilst in the stream I grabbed Simangaliso and made her to fall. She tried to ask what I was doing to her telling me to let her free but I continued and raped her once. After that I strangled her with my hands and took a stone and struck her four times on the head and she died. I picked another stone which was bigger and placed on top of her so that she does not stand again. I left and went back home.”

The contents of that statement are consistent with and corroborative of all the other circumstantial evidence which has been placed before us.

There is no direct evidence of the commission of the offence led by the Sstate. In other words, nobody witnessed the accused rape and thereafter kill the deceased as alleged. It is a case in which reliance is made on circumstantial evidence. What we have to do is to put that evidence together and see whether, circumstantially, it leads to the conclusion of guilt or otherwise.

In S v Vhera 2003 (1) ZLR 668 (H)…, this court stated the following on circumstantial evidence:

“The approach to circumstantial evidence is captured by the learned authors HOFFMAN and ZEFFERT, supra (The South African Law of Evidence, 3^rd edition, pages 478-479 in the following terms;

'The possibility of error in direct evidence lies in the fact that the witness may be mistaken or lying. All circumstantial evidence depends ultimately upon facts which are proved by direct evidence, but its use involves an additional source of potential error because the court may be mistaken in its reasoning. The inference which it draws may be a non sequitur, or it may overlook the possibility of other inferences which are equally probable, or, at least, reasonably possible. It sometimes happens that the trier of fact is so pleased at having thought of a theory to explain the facts that he may tend to overlook inconsistent circumstances or assume the existence of facts which have not been proved and cannot legitimately be inferred. In R v Blom 1939 AD 188 at 202-203, WATERMEYER JA referred to 'two cardinal rules of logic' which governed the use of circumstantial evidence in a criminal trial:

'(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.

The second rule in R v Blom is, of course, a statement of the criminal standard of proof.'

From the above, it is clear that the cogency of circumstantial evidence usually arises from the number of independent circumstances which all point to the same conclusion.”

What, therefore, are the proved facts from which an inference of guilt may be drawn?

It has been proved that the deceased was at home minding her own business on the morning of 27 August 2010 when the accused came and took her away under the guise of going to collect vegetables.  She was a reluctant participant as she tried to avoid going away with the accused but he persisted. The deceased did not return home after she had been led away by the accused and no vegetables found their way to her home. Instead, her battered body was found at a tributary of Jeqe River two days later by a search party. According to the medical evidence, before she was brutally killed she had been raped.

The last person to be seen with her was the accused person who has not rendered any evidence to disprove those facts.

The question which arises therefore is; can it be said that the only inference to be drawn from those proved facts is that it is the accused person who raped and killed the deceased?

In our view, there can be no other inference than that the accused person did commit the offences. We are therefore satisfied that the State has proved its case against the accused person beyond a reasonable doubt.

As to the intent of the accused person, we examine the post-mortem report in which Dr. A. R. Casteiianos observed the following marks of violence on the deceased's body:

“Multiple, deep wound(s) on the face, (6) multiple bruises (on) body…, depressed skull fracture…, brain laceration…,. The post mortem findings show multiple rib fractures, head injury second to depressed skull fracture. There are also signs of rape on the genitals with vital signs indicating that she was raped before she died.”

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

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

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

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

Here is an accused person who went about identifying his victim with care. He first inquired after her grandmother and when he confirmed she was out of the way, he pounced. He isolated the victim from everyone and led her to a place by the river where he ravished her. Having satisfied himself, he set about obliterating the evidence by battering the victim. The blows on the deceased were directed to none other than the most vulnerable part of the body, the head, so as to achieve a speedy termination of life. The victim was a 15 year old who was lying on the ground when she was attacked and did not pose any danger whatsoever to the accused.

Where a person meticulously plans an attack on a defencelss girl, then sexually attacks her before callously killing her, when he was not under any risk of attack or threat, they can only desire bringing about the death of the victim.

In the absence of background facts of this case, the circumstances of this case were rather bizzare or weird. It was only during the course of the trial that it became sensible as to why the event of this day occurred in the manner which unfolded.

The accused is facing two counts. Count 1 relates to murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] and Count 2 relates to assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23].

In Count 1, which relates to murder, the charge is that on 10 May 2015, at Machele Village, Chief Nhema, Zaka the accused unlawfully assaulted Mbambo Machele with an unknown object several times intending to kill him or realising 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.

In Count 2, which relates to assault, the charge is that on the same date and place as in Count 1, the accused unlawfully assaulted Margreth Machele with an unknown object on the back and right arm….,.

The accused, who resides in Chiwami Village, Chief Nhema, Zaka was known to both the now deceased and the complainant. The now deceased, who was about 73 years old, was the husband of the 64 year old complaint. It is not in dispute that on 10 May 2015, at about 19.00 hrs, the accused met both the now deceased and the complainant.

What is in issue is what happened when they met.

The State alleges that the accused attacked both the now deceased and the complainant with an unknown object when he suddenly appeared from behind. It is the State case that the accused firstly attacked the now deceased with the unknown object on both his legs and all over the body causing him to fall down. The complainant is said to have tried to flee from the scene calling for help but was allegedly attacked three times on her back and once on her right arm by the accused with the same unknown object. It is the State case that Apolonia Machele and Zezekai Ganyata answered to the complainant's distress call by rushing to the scene of crime where they found the now deceased lying down groaning in pain as he bled from both legs. It is common cause the now deceased was ferried to his nearby homestead in a wheel-barrow where he passed on the same night before he could be taken to hospital. The complainant was taken to hospital. The cause of the now deceased's death is said to be haemorrhage shock and multiple limp fractures.

The accused denies assaulting the complainant in any manner, and, instead, alleged she was mistakenly assaulted by her husband, the now deceased. The accused further alleges that he only assaulted the now deceased three times on the legs with the now deceased's walking stick which was an iron rod when he acted in self-defence. The accused disputed inflicting the fatal injuries.

In his Defence Outline, the accused's version of events is that when he met both the now deceased and the complainant on the day in question, at about 19.00hrs, he properly greeted them but they both initially failed to recognise the accused as they were both heavily intoxicated. The accused said he had to identify himself after which all hell broke loose. The accused said both the now deceased and the complainant alleged that the accused was coming from their homestead and went on to block the accused's way. The accused said it is the complainant who first held the accused's jacket raising the issue of a case the accused had previously reported to both the police and Chief Nhema when the complainant had allegedly assaulted the accused causing him to lose three front teeth and leaving other teeth being loose. The accused said as he was being held, the now deceased hit him with a walking stick. The accused said when the now deceased tried to deliver a second blow, the accused ducked and the now deceased mistakenly hit his wife, the complainant, with the walking stick on her right arm. The accused said realising the now deceased was hell bent on attacking him with the walking stick, the accused held the walking stick and he wrestled with the now deceased over the walking stick, as they both fell to the ground. Meanwhile, the accused said the complainant came to the aid of her husband, the now deceased, by picking stones which she threw at the accused. The accused said he managed to overcome the now deceased and dispossessed him of the walking stick. In a bid to fend off further attack, the accused said he assaulted the now deceased three times slightly above the knees. The accused said he was however hit on the knee with one of the stones thrown by the complainant causing the accused to fall down and losing grip of the now deceased's walking stick. At that point, the accused said he sensed danger and managed to flee despite limping from the injuries inflicted with a stone by the complainant. The accused said he decided to hide in the nearby bush and both the complainant and the now deceased failed to locate him. As he was hiding, the accused said both the now deceased and the complainant turned against each other as the now deceased accused his wife, the complainant, for causing all this altercation because the complainant had previously assaulted the accused causing the accused to lose his teeth. The accused said he went home leaving the two quarrelling and does not know what further transpired between them. The accused said he acted in self-defence and had been provoked by both the now deceased and his wife, the complainant.

The accused gave almost a similar version of events in his confirmed warned and cautioned statement, Exhibit 2. The only notable difference being that he said he was hit by the now deceased with an iron rod and not a walking stick (although the now deceased was using that iron rod as a walking stick).

The evidence of Joyce Chidzungu, Dr Zimbwa, Dr Muchinguri and Colen Muchinganwa was accepted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In brief, that it is as follows;

Dr Godfrey Zimbwa examined the now deceased's body and compiled a postmortem report, Exhibit 1.

Dr L. Muchinguri examined the complainant and compiled a medical report, Exhibit 3.

Joyce Chidzingu is the police detail who attended the scene of the crime on 11 May 2015 and caused the now deceased's body to be ferried to Masvingo Provincial Hospital mortuary.

Colen Muchinganwa is the investigating officer who also arrested the accused and recorded the accused's warned and caution statement, Exhibit 2.

A total of four (4) Exhibits were produced by the State in support of its case. They include the following;

Exhibit 1 is the post-mortem report compiled by Dr Zimbwa who examined the now deceased's body on 12 May 2015. Dr Zimbwa made the following pertinent observations and findings;

(i) The now deceased had a compound fracture of the right tibia and fibula just below the knee with an associated laceration which was about 8cm long.

(ii) Another compound fracture on the left tibia and fibula just above the ankle joint.

(iii) That the cause of death was haemorrhage shock arising from multiple limb fractures.

Exhibit 2 is the accused's confirmed warned and cautioned statement which we have already alluded to.

Exhibit 3 is a medical report in respect of the complainant in Count 2 compiled by Dr P. Muchinguri on 26 May 2015.

The doctor noted that the complainant had a laceration on the right upper limb and suffered from backache. The doctor said the injuries on the complainant were caused by both sharp and blunt trauma and that several blows were delivered with moderate force inflicting serious injuries although permanent disability was unlikely.

Exhibit 4 is the iron rod which weighs 0,240kg and is 95cm long. One of its end is very sharp and the other end is round-shaped. Apparently, this is the weapon the State alleges the accused used to attack both the now deceased and the complainant. The accused alleges it is this iron rod the now deceased used as a walking stick and was used to attack the accused and that the now deceased also hit the complainant in error before the accused wrestled it from the now deceased and assaulted the now deceased three times on the legs….,.

There are broadly two issues which this court has to resolve;

(i) The first one is the identity of the assailant who inflicted the fatal injuries on the now deceased and the serious injuries on the complainant in Count 2.

(ii) The second issue is whether the accused acted in self-defence.

Intertwined to these issues is the question of which of the versions given by the State and the defence is most probable or true in the circumstances.

To resolve these two issues, we revert to viva voce evidence placed before us.

Margreth Machele

As already said, Margreth Machele (Margreth) is the 65 year old wife of the now deceased. She knew the accused as an employee of her nephew, one Chebanga Sithole.

Margreth told this court that on 10 May 2015 she went with the now deceased to Mureyi Village where they intended to sell their beast, and, on their return, went via her husband's elder brother's homestead where there was a beer drink which they unfortunately found finished. She said the now deceased only got three (3) cups of the traditional brew and she settled for the less intoxicating residue (called muchaiwa in Shona) hence they were both not drunk when they left for their home at about sunset.

She explained how they were attacked.

Margreth said when they were near their homestead, as it was now getting dark, her husband, the now deceased, was attacked first and initially they did not see the assailant. She said the now deceased was hit with a second blow and he fell down facing upwards as the attacked continued. The now deceased then shouted that he had identified his assailant as one “Goddie, an employee of Chebanga.” Margreth said at that point she turned and also identified the accused who was/is well known to her. She said upon realising that the now deceased's life was in danger due to the vicious unprovoked attack she ran away calling out for her daughter in law Apollonia's help. Margreth said she did not manage to get far as the accused turned on to her and delivered three (3) blows on her back and the 4^th blow was on her right upper arm as she was stabbed with a sharp instrument, which to her was like an iron rod. By then she said she had clearly identified the accused and that the accused did not utter any words. She said Apollonia answered to her distress call and came with a light as the accused was throwing stones at them.

Margreth said when they got to the now deceased they realised he had been severely injured as he lay lifeless bleeding from broken legs. She said her son in law, one Titus Bhasitera, then arrived at the scene and ferried the now deceased in a wheel barrow to their homestead. Her husband passed on that night from the fatal injuries before he could be taken to hospital. It was herself who was taken to hospital where she spent four (4) days and was discharged in order to attend the burial of her husband, the now deceased.

According to Margreth, her right hand is still in pain and we noted that besides the healed scar arising from the stab wound her right hand is swollen and has blisters.

Margreth Machele also explained what she believes could be the possible cause why the accused attacked her and her husband, the now deceased. She said sometime in the past, probably in 2014, she had brewed beer at her homestead and the accused and other patrons attended. She said the accused later stole some of the beer but was detected and the stolen beer confiscated. This led to an altercation between the accused and other local boys or men who were present resulting in a fist fight which degenerated to the use of stones and bricks as the protagonists were drunk. She said during this brutal fight the accused lost some teeth. Margreth said she was surprised when the accused sought to implicate her to the police in that fight and alleging that she had assaulted the accused causing him to lose his teeth. She said the police however investigated the matter and realised that due to her gender, old age, and frailty she could not have fought the accused, let alone causing him to lose his teeth. The police released her. In fact, she said the accused was injured by other men when they fought at her homestead.

Under cross-examination, Margreth said the attack perpetrated on her and the now deceased on the day in question was unprovoked and that the accused never uttered a word to them throughout the attack. She dismissed as totally untrue the accused's version of events. She denied quarrelling with the accused that night. When it was put to her that she and her husband were the aggressors who first attacked the accused, she genuinely looked surprised by that question retorting how old she and her late husband were could even contemplate attacking a young and fit man of the accused's stature. She totally denied she attacked the accused in the past or causing his loss of teeth. She dismissed as untrue that both herself and the now deceased were drunk.

Margreth Machele could only guess why the accused attacked her and the now deceased as he never explained himself. She completely dismissed as totally false that she was injured by her late husband and ascribed her injuries to the accused. She denied that the accused acted in self-defence as no one attacked him….,.

The evidence of both Apollonia Machele and Titus Bhasitera is not helpful in identifying who attacked the now deceased and Margreth. Further, their evidence was largely unchallenged. We shall simply summarise it for completeness of the proceedings.

Apollonia Machele

Apollonia Machele (Apollonia) is a daughter-in-law of Margreth Machele and is now 65 years old. She did not know the accused and did not see or identify him on the day in question.

Apollonia said on the night in question she was in her kitchen hut at around 19:00 hrs when she heard her mother in law, Margreth, crying calling out for help saying she, Margreth, and the now deceased, were being killed by one “Goddie.” This prompted her to rush to the scene with a torch and met Margreth who was running away. She observed that Margreth had been stabbed on her right hand above the elbow. She accompanied Margreth to the place where the now deceased was and they were joined by one Zezepai. Apollonia said they found the now deceased lying down, soaked in blood from the knee level. At that stage, one Titus arrived and he ferried the now deceased in a wheelbarrow. She did not see who had attacked the now deceased and the complainant as the assailant had vanished. Apollonia noted that Margreth was not drunk….,.

The accused's evidence

The accused adopted the version in his Defence Outline and confirmed warned and cautioned statement as his evidence.

In his evidence, the accused maintained that Margreth Machele assaulted him at her homestead in 2014 causing him to lose some teeth. The accused gave his version of the events of 2014 leading to the accused's injury at Margreth's homestead. The accused said on the day he was injured and lost some teeth he was at a beer drink at Margreth's homestead. He said Margreth just started to assault people at her homestead and the accused tried to restrain her. Instead, he said Margreth turned on to the accused and hit him with a pestle causing the accused to lose three (3) teeth. In fact, the accused said his crime then was to try and restrain Margreth's son, one Clever, and that this did not go well with the Margreth.

The accused said after he had been injured by Margreth, her husband, the now deceased, offered to compensate the accused with a beast but the accused declined the offer, and, instead, reported the matter to ZRP, Zaka. The accused said he also turned down US$16= offered by Margreth's emissary.

Unfortunately, all this was not put to Margreth Machele to solicit her comment.

The accused said after he spurned the offers from Margreth and her husband, Margreth's relatives started to threaten the accused which forced the accused to leave employment at Margreth's relative. The accused said he was not able to present a solid case to the police against Margreth as he failed to raise US$70= for him to be treated and obtain a medical report. The accused said he also failed to attend court and his case against Margreth was therefore dismissed.

The accused said in his quest for justice he reported the same matter to Chief Nhema and that Margreth was ordered to pay compensation of four (4) beasts or an equivalent of US$450= per beast. The accused said Margreth defied the order by Chief Nhema and the Chief was unable to cause her to comply with that order for compensation.

Again, all this was not put to Margreth Machele in cross examination.

As regards the events of the day in question, the accused stuck to the version he gave in his Defence Outline and no useful purpose would be served by repeating it. Suffice to say that the accused insisted that the now deceased and Margreth were very drunk and were the aggressors. The accused denied assaulting Margreth at all and then when he assaulted the now deceased with a walking stick, three times, he was acting in self-defence. The accused said he believes the now deceased was injured by Margreth because after his arrest the scene of crime shown to him by the police was about 1km from where he had had an altercation with both Margreth and the now deceased. The accused said it was unfortunate that the police arrested him on these allegations before he himself had filed his report. The accused said despite being injured that night by Margreth he was not treated because a police report was required.

Under cross-examination, the accused conceded that Margreth Machele was released by the police for allegedly causing the accused's loss of teeth due to lack of evidence. The accused also agreed that he was bitter when Margreth could not be held accountable for what she allegedly did. In fact, the accused said he indeed approached the Chief because he wanted compensation and also to be given money for treatment arising from his alleged loss of teeth. The accused insisted he had issues with Margreth and not her husband, the now deceased, hence he had no cause to fatally attack the now deceased.

Analysis of the evidence

We are not persuaded by the accused's version of events both in relation to the background facts of this matter and what transpired on the day in question.

In our view, it is highly improbable that a frail, old woman like Margreth Machele would have injured the accused at her homestead causing him to lose three (3) teeth. If that had been possible we find no reason why the police and the courts would fail to punish Margreth for her transgressions. There should have been a number of witnesses who should have witnessed such an attack on the accused. On the facts before us, Margreth's version of what happened at her homestead during the beer drink is more probable.

We are unable to appreciate the accused's defence in this case.

The background facts which the accused painstakingly outlined use only to help to shed light as to what motivated the accused to attack the now deceased and Margreth. While the accused admitted assaulting the now deceased with the iron rod, all the accused does is to play down the severity and consequences of that assault. Instead, the accused wants us to believe that some other unknown person, or Margreth, later fatally attacked the now deceased after the accused had left. This is improbable for a number of reasons.

Why would some unknown person emerge from the blue to attack the now deceased soon after the accused's departure?

Why would Margreth, who had allegedly teamed up with her late husband, suddenly fatally attack the now deceased?

Would a frail and old couple, like Margreth and the now deceased, engage in a serious fight with a reasonably young and fit person like the accused in the manner the accused wants this court to believe? This is even made worse by the accused's assertion that both Margreth and the now deceased were excessively drunk.

The accused's version goes against the grain of evidence given by Apollonia Machele and Titus Bhasitere, who both heard Margreth crying out and calling for help.

It is illogical for Margreth Machele to have called for help in that manner if she and the now deceased were the aggressors and were not under any meaningful attack. The fact that Titus and Apollonia were clear on Margreth's sobriety put the accused's argument to rest that the two may have acted in the manner they did because they were heavily intoxicated. Further, all the witnesses denied that the now deceased was using any walking stick or the iron rod, Exhibit 4.

The accused's conduct betrays the truthfulness of his version.

After such an alleged unprovoked attack by Margreth and the now deceased, the accused vanishes from the scene. He did not look for any help despite alleging he had been injured. He did not go to report to the police. Instead, the police had to arrest him.

Our finding is that it is the accused who inflicted the fatal injuries on the now deceased in Count 1 and also seriously injured the complainant in Count 2. The manner in which the accused attacked the now deceased, the weapon he used, and the injuries he inflicted leads to the inescapable conclusion that he did realise that there was a real risk or possibility that his conduct may cause the now deceased's death but nonetheless continued to engage in that conduct.

The defence of self-defence raised by the accused is clearly a ruse and there is absolutely no iota of truth that the accused acted in self defence. Instead, the accused simply pulverised this old couple as they happily walked home.

Accordingly, we have entered the following verdicts.

Verdict

The accused, a 40 year old widow, faces a charge of murder, it being alleged that on 2 April 2013, at Minihaha, Nyakupinga Resettlement Scheme, Nyanga, with actual intent to kill or realising the real risk or possibility that death may result, struck John Muchiriwesi (56) with an unknown object and a stick thereby inflicting injuries from which the said John Muchiriwesi died.

In her Defence Outline, she denies that her conduct led to the death of the deceased.

She states that on that day, the deceased's cattle strayed at her field and destroyed her maize. She had approached the deceased and invited him to inspect the damage caused by his cattle. He suggested that he could, after the inspection, take the matter up with his sister who was the owner of the cattle. She went to his residence but was further upset when she learned that the deceased's sister, Felistas Mawodza (“Felistas”) was not at home. She then confronted him as to why he had had lied about the matter of his sister. He became abusive. In the heat of the moment she had took a peach tree stick and struck him twice on his legs.

On that day, she says she noticed that the deceased had a wound on the back of his head but since he was always with one kind of wound or the other, she did not bother to ask him how he had sustained this particular one. He drove his cattle away.

In court, she repeated, in her evidence-in-chief, a version similar to the above. She however added that she had not boasted to Cyril Rumhungwe ('Cyril') about the severe beating she had meted on the deceased subsequent to the assault. Instead, she said that she had told him that she had struck the deceased twice on his legs with a stick as she had been upset by the negligence the deceased displayed with his cattle; which negligence resulted in the loss of her maize at the fields.

The evidence led from the State witnesses showed that the deceased had been badly assaulted such that he had been helped to a neighbour's residence by well-wisher on 3 April 2013. This well-wisher, Grace Saburi, had found the deceased unable to walk home. She helped him to get to the Chihwayi homestead where he spent the night. On 3 April 2013, Cyril Rumhungwe was in his field when he noticed the accused pass by without exchanging pleasantries. He asked her why she was in such a foul mood.  The accused told him that she was upset by the incident in which the deceased's cattle had destroyed her maize. As a result, she said, she had assaulted the deceased.

On 4 April 2013, acting upon this information Cyril decided to call upon the deceased's residence to check on him. He did not find him there but at the neighbouring Chihwayi's residence. He was not well. He decided to bath him. As he did so, he observed a head injury. Upon asking how he had been so injured, the deceased advised him that the accused had assaulted him causing that injury. Cyril phoned the deceased's sister, one Felistas Mawodza and advised her that the deceased was not well. She came and conveyed him to a health facility at Nyanga.

For her part, Felistas told the court that when she came to fetch her brother, she noticed that the accused was amongst the people who had helped the deceased to reach the access road. At the time, no-one told her that her brother had been assaulted. At the hospital, the deceased tested positive for malaria. He was given the malaria prescription and discharged. According to the sister, after completing the prescribed course of treatment, the deceased did not get any better. If anything he got worse. Only then did Cyril Rumhungwe relate to her the incident of the assault.

This prompted a report to the hospital and attention was later directed at the head injury. The deceased was then referred to Mutare Provincial Hospital on the third visit to this hospital.

We were satisfied that the two State witnesses were reliable, honest, forthright, dependable and credible. On the other hand, the accused did not impress us as a truthful witness for the defence. She was uncomfortable when she gave her own version of the events surrounding her encounter with the deceased. Even as counsel led her in-chief, she was uneasy, unsure, and jittery to the point of exasperation by her counsel.

We are aware that a courtroom environment could induce stage fright to someone who has come into it as an accused for the first time, but, in the present case, a person accused of something she did not do could not be so shaken as to fail to show belief in her own version of the events. It only showed that the accused had decided to be less than honest with the court.

Her version, in our assessment, lacks any credibility.

Her bare denial of striking the deceased on the head is contradicted by the evidence of two witnesses, Cyril Rumhungwe and Grace Saburi, who heard the deceased state that the accused inflicted the head wound on him on 2 April 2013.

In our view, the accused chose to suppress the truth for fear of the obvious consequences associated with a grievous attack on the deceased which she boasted to Cyril Rumhungwe about on 3 April 2013.

We therefore find that the accused struck the deceased with an object causing the injury from which he died.

The question regarding intent poses some difficulty to us.

The court is unable, without any idea of the type, shape, or form of weapon used, to state categorically that the accused intended to kill or that she realised the real risk or possibility that death may result from an assault with that particular weapon when she struck the deceased in the head.

It is settled law that the test whether a person has constructive intent to kill is a subjective one. Even accepting that it is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death, the difficulty still exists in arriving at that inferential reasoning in the absence of the weapon used in the assault. The absence of the description of the weapon used, in our view, places this case in a category of its own where the general principles on the question of intent are hardly applicable. Before one can conclude that the accused was reckless one must have the factual position in respect of what aspect of the expected conduct she was reckless. Recklessness must extend to the issue of whether or not the risk involved is fulfilled in death but where the evidence is scant, as here, it is difficult to conclude that the accused was indeed reckless as to whether the risk is fulfilled in death.

At most, she was negligent in respect of assaulting the deceased in the head with a weapon. See R v John 1969 (2) SA 560 (RA).

The facts in this case show that the accused assaulted the deceased with an unknown object with sufficient force that the weapon inflicted a 4cm laceration on the accused's head and induced a swelling of the brain. In our view, on these facts, we find that in resorting to the use of such force on the head, a vulnerable part of the human anatomy, the accused was negligent. There is no doubt that the accused's conduct is the proximate cause of the deceased's death. But for the injuries inflicted on him in the assault by the accused, the deceased would not have died when he did.

The accused is facing a murder charge in that on the 5^th of August 2013, and at 22527 Pumula South, Bulawayo, in the said Province, the accused person did wrongfully, unlawfully and intentionally kill and murder Oppah Ndlovu a female adult during her lifetime therebeing.

The facts are as outlined in the State Outline. They were read into the record, and I do not intend to repeat all of them here. I will just state the summary of the facts…,.  The accused pleaded not guilty and his Defence Outline was read into the record and produced as exhibit 2.

The crux of his defence is that he did not intend to kill the deceased but wanted to defend himself. He also raised the issue of anger or provocation as a defence. He however admitted committing the actus reas and using the murder weapon on the day in question. The State produced exhibits as shown in the exhibit list.

Exhibit 4 is a post mortem report by Dr Ivian Betancourt who found the cause of death to be:

(i) Hypovolaemic shock.

(ii) Damage of left lung, severe haemothorax.

(iii) Severe thoraice trauma due to stabbing injury.

The State then led viva voce evidence from Tapelo Ndlovu, a ten year old boy, who is the deceased's son and the accused's cousin. His evidence was that on the night in question he was bathing when he heard his mother (deceased) screaming calling out his name. He rushed out and saw bloodstains on the sofa and floor in the sitting room. He rushed to his mother's bedroom where he heard the door being locked from inside. He tried to open the door but realised that it had been locked. He then ran out of the house but before he got far the accused, who was pursuing him, caught up with him and covered his mouth with his hand at the same time threatening to beat him if he made any noise. The accused took him back into the house where he ordered him to clean the blood on the knife and sofa. The accused wiped the blood that was on the floor. He saw the accused changing his clothes. Later, the accused told him to accompany him to the shops to buy bread. The accused then told the witness that they should go to Mrs Tshuma's house to report that the deceased had been murdered by unknown assailants. Before they left, the accused took all the money from the deceased's bag. He also threw clothes all over the room. They then proceeded to Mrs Tshuma's house where, upon arrival, the accused told her that the deceased had been attacked by unknown persons. Mrs Tshuma called a neighbour, one Witness Antonio Ngwenya, who also brought her husband and together they went to the deceased's house.

When they arrived, the accused showed them the room where the deceased was. The witness saw his mother lying on the floor facing upwards. According to this witness, the relationship between the accused and the deceased was, at times, sour because of the accused's disobedience. He said on one occasion the deceased assaulted the accused with a cooking stick after the accused had slept on the deceased's bed with his girlfriend while the deceased was away. Further, he said the bone of contention between the two was that the accused would not perform the chores assigned to him by the deceased. The deceased would end up performing those chores.

Tapelo Ndlovu's evidence was not challenged during cross-examination. The size of the cooking stick was not put to him by the defence.

In fact, the accused's evidence corroborates Tapelo's evidence in material respects.

For example, he admitted that the cause of the misunderstanding between him and the deceased was his failure to perform domestic chores. He admitted that he told Tapelo a concocted story that the deceased had been attacked by unknown assailants. He admitted that there was blood on the sofa and on the floor in the sitting room. Also, he agreed with Tapelo that he, at one time, brought his girlfriend home to spend the night there. He, however denied sleeping on the deceased's bed with this girl….,

The State then applied to have the evidence of the rest of their witnesses admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The application was not opposed and the evidence of Tryphine Tshuma, Witness Antonio Ngwenya, Lazarus Ngwenya, Byron Dunura, Never Kamupita, and Dr Betancourt was admitted by consent. 

The State then closed its case….,.

The accused then gave evidence in his defence.

His version is simply that he arrived home late from school on the fateful night. The deceased took issue with that and demanded an explanation from him. After proffering an explanation, the deceased did not believe him and told him that she was going to beat him thoroughly. She then stood up and armed herself with a “big cooking stick” which was in the kitchen. After that, she then advanced towards him and started assaulting him with this big stick. According to him, prior to explaining the reason for coming home late, he had taken a kitchen knife (Exhibit 8) from the kitchen intending to use it to cut a piece of soap. When the deceased started assaulting him, he had placed the bar of soap on the floor but kept the knife in his hand. When the deceased continued to assault him, he then stabbed her above the eye and ran into the deceased's bedroom with the deceased in hot pursuit. He continued to stab the deceased in the bedroom but could not say how many times he stabbed her. However, he admitted that he aimed his blows at the upper part of the deceased's body. After that, he told Tapelo Ndlovu to clean the knife. Further, he admitted that he told Mrs. Tshuma a fabricated story as to how the deceased had been injured. He maintained that he stabbed the deceased in self-defence since he could not have fled due to the fact that the deceased had 'blocked' his way. As regards their relations, he admitted that at times they were turbulent and the deceased would insult him and chase him away from home after having assaulted him. 

On the day in question, he said he acted out of anger but lacked the intention to kill the deceased.

We find the accused's version as regards how he ended up with a knife and how he was assaulted by the deceased hard to believe. We appreciate that the only direct evidence as regards the cause and sequence of the fight is coming from the accused. However, his evidence is improbable in certain respects.

For example, we find that it was highly unlikely that the deceased would immediately, after being stabbed with such a dangerous weapon, follow the assailant. Also, the accused's version of the manner and nature of weapon used by the deceased to assault him is highly incredible. He failed to show or mention the 'big cooking stick' to the police who attended the scene that evening. Instead, he told them a different reason for the fight – namely, that the deceased had confiscated his cell phone. The accused's evidence that the deceased chased him is inconsistent with Tapelo's evidence that it was the deceased who “screamed calling out his name.” We agree with the State counsel that it was, in fact, the deceased who was running away from the accused.

It appears to us from the surrounding circumstances, and other evidence, coupled with the probabilities, that the accused's version is false.

In any event, assuming we are wrong that there was no unlawful attack on the accused, the following analysis and application of the law to the facts will demonstrate that the two defences raised by the accused are unsustainable.

The Law

Our law recognizes that the infliction of harm upon unlawful attackers is permissible to the extent that such harm was reasonably necessary to avoid them off. Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides the requirements of this defence. They are –

(1) There must be an unlawful attack.

(2) When the accused engaged in the conduct, he believed, on reasonable grounds, that the unlawful attack had commenced or was imminent.

(3) The accused believed, on reasonable grounds, that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack.

(4) That the means used to avert the unlawful attack were reasonable in all the circumstances.

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

(a) Was caused to the attacker;

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

In assessing these requirements, the court must avoid an armchair approach from the refined atmosphere of the court. Put differently, the court must take into account the accused's predicament – S v Phiri SC190-82; S v Mashingaidze SC79-84; S v Mandizha SC200-91; S v Banana 1994 (2) ZLR 271 (S).

Another relevant section in respect of this defence is section 255 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which basically provides that if an accused is genuinely, and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence to any criminal charge in all respects as if his or her belief were in fact correct.

Note: For the defence to avail, the mistake must not only be genuine but also it must be reasonable - S v Moyo SC45-84. Before applying these principles to the facts before us we must state the facts that are common cause. They are the following:

(a) The accused and the deceased were related and living under one roof.

(b) On the fateful day, the deceased and the accused had an argument over the accused's late arrival from school.

(c) The deceased screamed calling out Tapelo Ndlovu's name.

(d) There were blood stains on the sofa and floor in the sitting room.

(e) The accused stabbed the deceased with Exhibit 8 causing all the injuries observed on the deceased's body.

(f) All these injuries were inflicted on the deceased's chest, neck, head and face.

(g) The deceased died as a result of these injuries.

Applying the principles of law to the above facts, we make the following findings (giving the accused the benefit of doubt);

(a) That the deceased used an ordinary cooking stick to assault the accused and not the 'big cooking stick' the accused alluded to.

(b) That this assault did not present a threat to the accused's life as the deceased was merely chastising the accused for coming home late.

(c) The accused did not sustain serious injuries from this assault (admitted).

(d) The accused's conduct was not necessary to merit this attack.

(e) The means used by the accused were totally unreasonable in all the circumstances of this case.

(f) The injuries caused were grossly disproportionate to that liable to have been caused by the deceased.

(g) That as a result of the foregoing, the requirements of self-defence have not been met.

In casu, we find the accused to have acted with actual intent to kill. We say so for the following reasons:

(i) The accused stabbed the deceased with a big sharp knife on numerous occasions.

(ii) He aimed at the deceased's chest, neck, face and head.

(iii) He inflicted very serious and fatal injuries on the deceased.

(iv) The deceased died from these injuries.

(v) Provocation has not been proved a defence in that a reasonable person in the accused's position would not have lost his self control.

Consequently, we agree with counsel for the State that the accused be found guilty of murder with actual intent.

The bare bones of the matter are that both accused persons and the now deceased were drinking beer in Nganda Bottle Store situated in Chief Shindi's area in Chivi, Masvingo until the bar closed.

The evidence led clearly shows that both the accused persons, and, to some extent, the now deceased, were so intoxicated that they could hardly walk. Both the accused were throwing each other to the ground in a manner one of the witnesses described as similar to what happens in the popular TV programme of wrestling known as WWE Wrestling. It is not surprising that they even quarrelled on the route to use as they departed for home.

There is no witness as to what happened as the three walked together but the now deceased, who had just returned from South Africa, was found injured and barely conscious by the roadside the next morning on 14 June 2016. He was taken to Shindi Clinic and was transferred to Masvingo General Hospital where he passed on 15 June 2016 due to a skull fracture.

Both the accused persons admitted having fought the now deceased on their way home but indicated that they were all heavily intoxicated to such an extent that they could hardly appreciate what was happening. Indeed, this degree of intoxication was confirmed by all witnesses who saw them and that they had taken copious amounts of opaque beer virtually the whole day.

In their respective Defence Outlines, both accused person tendered pleas of guilty in respect of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which relates to culpable homicide. Initially, the State was not prepared to accept this limited plea but at the close of the prosecution case, the State accepted the limited plea.

This is in order after considering the provisions of both section 221(1) and section 221(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Section 221(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

“(2) Where a person is charged with a crime requiring proof of negligence, the fact the person was voluntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime shall not be a defence to any such crime, nor shall the court regard it as mitigatory when assessing the sentence to be imposed.”

The accused is the mother to the two children who died in an inferno which destroyed the house in which the two children were asleep. She was charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State alleged that;

“On the 26^th day of May 2014, and at Tapera Village, Chief Makoni, Rusape, the accused unlawfully and with intent to kill, burnt Bathsheba Berly Mamhunze and Divine Rhythm Mamhunze by setting on fire the bedroom in which both were sleeping and got burns all over their bodies thereby causing injuries from which the said Bathsheba Berly Mamhunze and Divine Rhythm Mamhunze died.”

It is common cause that the accused is the mother to both deceased children. On 26 May 2014, the bedroom in which she was sleeping with the two children with her husband and the two children was gutted by fire. The State claims that the accused had intentionally set the bedroom on fire with intent to kill her children. She denies the nefarious motive and maintains that the fire started accidentally and gutted the bedroom where she and her family were.

The matter proceeded to trial on that basis.

Evidence was led from not less than eleven witnesses. The first witness was her husband's mother. Her evidence was that the accused was the senior wife in her marriage to Tapiwa Mamhunze, her son. The junior wife was Esina Kunaka. Earlier that day, the accused had quarrelled with her husband over certain issues which remained unclear. She had restrained and counselled them in this misunderstanding. She later observed the accused sprinkle petrol on Tapiwa Mamhunze, her son, who she then attempted to set on fire. Her son had managed to douse out the fire without incident or injury to himself. She and a neighbour, one Loveness, had counselled the young couple and later retired to bed. It was only in the early hours of the next morning that she woke up to the shouts for help from her son, Tapiwa, who said his house was on fire. When she got to the scene her son had managed to rescue Divine Rhythm. She accompanied the child who had suffered serious burns to Rusape General Hospital.

The junior wife, Esina Kunaka, confirmed the altercation between the accused and their husband. She also confirmed that the accused had sprinkled petrol over their husband and attempted to set him alight. He did not suffer any injuries as he managed to put out the flames. Later that night, going into the early hours of the next day, she had been woken up by their husband who shouted that the house was on fire. She occupied a separate section of the house. She managed to escape with her children. The accused's two children were severely burnt in the fire.

The father-in-law to the accused, Elton Mamhunze, gave evidence in court. That evidence touched on the events of the day preceding the incident in which his son's house got burnt. He had earlier that day counselled the young couple against violence. They appeared to have heeded his wise counsel as their father. He was awakened by his wife who told him of the fire engulfing his son's house. He did not see nor did he later get to know from other sources how the fire had started. He was unable to say the accused had set the house alight.

The rest of the evidence was of a formal nature touching upon how the hospital staff had treated the deceased and later complied post mortem reports at different times as well as how the police had conducted the investigations.

It is critical to observe that the only person who could have shed light in this matter, besides the accused, was the accused's husband, Tapiwa Mamhunze. They were in the same room with the children when the fire started. He would have had the first-hand information regarding this aspect of the case. Unfortunately, the State decided to exclude this crucial evidence, and, instead, chose to call a witness, Elton Mamhunze, who was not listed as part of the line-up of the State witnesses. In the end, there was no evidence linking the accused with the death of the deceased.

As she was entitled to, the accused applied for the discharge of the case against her at the close of the State case on the basis that no evidence was led that she committed the offence charged or any other offence for that matter.

The courts in Zimbabwe have pronounced themselves in a long line of cases, including S v Kachipare 1998 (2) ZLR 271 (S), as to the law in Zimbabwe on an application for discharge at the close of the case for the State. The position at law is sufficiently clear as to be called trite. It may be restated as follows.  Where the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he or she might be convicted, the court has no discretion but to acquit.

On a charge of murder, the possible alternative charges include culpable homicide and assault.

The test whether the court ought or must discharge the accused at the close of the State case has been set out as follows;

The court should discharge the accused at the close of the case for the prosecution where:-

(a) There is no evidence to prove an essential element of the offence (A-G v Bvuma & Anor 1987 (2) ZLR 96…,.);

(b) There is no evidence on which a reasonable court acting carefully might properly convict (A-G v Mzizi 1991 (2) ZLR 321…,.);

(c) The evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it (A-G v Tarwireyi 1997 (1) ZLR 575…,.).

In all these instances, the cardinal guide is that the State would have failed to prove a prima facie case against the accused. A prima facie case is a case where one can say there has been shown, on the evidence led, a probable cause to put the accused on his defence. Generally, probable cause or a prima facie case is made where all the essential elements of the offence charged or any other offence on which the accused may be convicted have been proved on a balance of probability. At this stage, the test is not whether there is proof beyond reasonable doubt but whether on a balance of probabilities it can be argued that the essential elements constituting the offence charged or any other offence have been proved.

On a charge of murder, the State, at this stage, ought to show a balance that the following elements have been proved:

(a) Tthe accused burnt the deceased;

(b) By setting the bedroom on fire;

(c) With intent to kill;

(d) That the accused acted unlawfully.

In other words, the evidence must be such that a reasonable court, acting carefully, may convict the accused for the offence charged or any other offence on which he can be convicted.

The evidence led so far related to how the accused acted towards her husband during the day. The accused had quarrelled with her husband. She has secured petrol. She had later attempted to set him alight. She had poured the petrol onto her husband and so on.

The charges she faces in this trial relate to her two children and not her husband.

The crime charged, murder, was allegedly committed by setting the bedroom, in which the two children were asleep, alight. There is no evidence to show how she did this. There is, too, no evidence to suggest that she did so intending that her two children only be consumed by the raging inferno without risking her own life in the process. There is no evidence to suggest that she lit the bedroom from the outside. There is no evidence of any motive that she, as the natural mother, would have to achieve such a wicked outcome. Of course, the existence of a motive is not, on its own, sufficient evidence linking a suspect to a crime but it does provide probative value, in cases, to other pieces of circumstantial evidence that may exist in a case. This evidence could have been procured from the only other witness present in the bedroom who survived the fire, Tapiwa Mamhunze, her husband.

He was not called.

As matters stand, an essential element of the crime, which is the act constituting or linking the circumstances to the intent to kill, was not proved. It is not clear on the evidence led so far, how she set the bedroom alight, and, least of all, how she set alight or burnt her children. It is mere speculation for this court to suppose that she had sprinkled the entire bedroom with the petrol she had acquired earlier in the day in an effort to kill her husband, as testified to by the mother-in-law or the junior wife. These two could not, by any stretch of the imagination, be adjudged independent witnesses in the circumstances of this case. Therefore, if one discounts the evidence from the close family members, who themselves do not state that the accused set the bedroom ablaze in a particular manner, or that she had confided in one, or both, or more, of the witnesses that she had done so, it is unclear how the case for the State could ever reach the threshold of proof beyond a reasonable doubt.

The accused's defence is that this was a tragic and unforeseen accident in which she too was a victim. 

What this defence does is to challenge the State to prove that the burning of the children was accompanied by a malicious mind on the part of the accused….,.

In the present case, up to the close of the State case, it is not disclosed what the accused did to either set the children's bedroom alight or to burn them. Without some form of proof of her conduct, it is inconceivable that the accused can be convicted on any other offence which is a competent verdict on a charge of murder.

The accused pleaded not guilty to a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged in the indictment that on 25 July 2014, at Farm 75, Musimbo, Chief Mapungwana, Chipinge, he unlawfully and with intent to kill, assaulted Elcina Makuyana with a stick several times all over the body thereby causing injuries from which the said Elcina Makuyana died.

The State alleged that the assault on the deceased led to injuries from which she died.

In order to prove its case against the accused, the State relied on the evidence of two witnesses who heard an altercation between the accused and the deceased; two police witnesses to whom the accused made certain statements and indications and a medical post mortem report by a doctor.

It is clear that there was no eye witness to the alleged assault on the deceased. The case against the accused was therefore wholly circumstantial evidence.

In his defence, the accused claims that he had not assaulted the deceased as alleged or at all. He however admitted that he had an on-going civil matter which, at the time, was pending at Chief Mapungwana's Court. That case involved accusations of dabbling in witchcraft against the deceased by the accused. The accused claimed that the deceased had caused illness in him by means of witchcraft. The Chief's Court was seized with that matter. He had hoped that the matter will be resolved at the Chief's Court when he received news of the death of the deceased. He denied any involvement in the assault although he had gathered that there were allegations of assault on the deceased.

The evidence led in court established the following facts:

The accused is the owner of Farm 75 Musimbo. The deceased lived on this farm. She was a distant relative of the accused's father. She lived alone. The accused fell ill, and, as a result of his own inquiries, he held the belief that the deceased had caused him to be ill by means of witchcraft. He reported his finding to Chief Mapungwana who summoned the deceased for a hearing. Both the accused and the deceased had attended at the Chief's Court and the matter was not concluded. It is not clear what the terms of adjournment of the matter before the Chief were. What is clear, however, is that the parties were to attend at this court pending the resolution of the matter.

By 25 July 2014 the matter had not been resolved. On that day, James Mhlanga (“James”) had heard the accused and the deceased exchange harsh words over the witchcraft matter. It was an altercation over allegations of witchcraft. According to James, the accused shouted that he did not want to keep witches at his farm. The accused threatened to assault the deceased. The deceased challenged the accused to prove that she was a witch. This altercation lasted about an hour, in James's estimation. He put the time as being between 18:00hours and 19:00 hours. He heard the accused's voice recede in the distance after 19:00 hours indicating that the accused was leaving the deceased's homestead. He did not visit the deceased's residence until after the news of her death reached him.

Another witness, Thomas Maphosa (“Thomas”), had last seen the deceased, his sister, the previous day, prior to 25 July 2014. She was going home after work. On 25 July 2014, as he arrived at Farm 27 Musimbo from a funeral, he overheard the accused's voice recede indicating that he was leaving the deceased's residence. He did not hear what the accused was saying but from the tone of the voices he concluded that there had been an altercation between the two. It had not been a cordial exchange. He knew of the court case between the two which was pending in the Chief's Court.

On 30 July 2014, Dr Makumbe, a medical doctor who examined the remains of the deceased, made the following observations;

“Deceased was assaulted all over the body with stick or log. Died on the spot. External examination indicated multiple bruises on the face, toes, buttocks and thighs. Excessive neck hypermobility in region C2. No other broken bone. Interior examination was not done.”

Dr Makumbe concluded that the cause of death was “cardio-respiratory arrest secondary to C-spine injury.”

Other evidence relied upon by the State include the accused's confirmed warned and cautioned statement; indications made by the accused to the police details during investigations, which were reduced to a sketch plan; a certificate of weight of a stick which the accused gave to the police indicating to the police that it was the stick with which he had assault the deceased; as well as the photographs of the deceased's remains.

The police witnesses involved in the matter, Assistant Inspector Muchanya and Cst Mhuru gave evidence regarding how they gathered evidence in this matter.

Their evidence was that when they arrested the accused he was properly warned and cautioned and advised of his legal rights. He briefly was silent but then indicated that he was not involved in the death of the deceased. However, upon getting to the police station, he had then admitted that he assaulted the deceased over witchcraft. He went on to give a statement to that effect. That statement was subsequently confirmed by the magistrate in terms of section 113 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused explained that the statement he gave was freely and voluntarily made. He had given the statement in order to avoid further ill-treatment by the police. He claimed that they had placed him in handcuffs and leg irons before hanging him, headlong, between two tables in such a manner he was suspended on an iron bar.

I find that his claim of torture not to have been substantially proved as to require this court to inquire into the voluntariness of the giving of the statement. I come to this conclusion on the basis that had he been subjected to such ill-treatment; this would have featured quite prominently in his Defence Outline.

What was quite apparent, however, was that the confirmation proceedings were irregularly conducted in that the magistrate allowed the investigating officer to sit in the proceedings.

As such, the proceedings were a nullity and must be ruled to have been such a nullity. The deceased, in my view, discharged the onus on him to show that those proceedings were irregularly conducted. S v Nkomo 1989 (3) ZLR 117 (SC); S v Ndebele 1983 (2) ZLR 216 (SC).

However, that is not the end of the matter.

The warned and cautioned remained admitted by the accused. It was a detailed one; it touched on matters which only the accused could have known about. It deals with matters of details which are confirmed by the witnesses. The accused does not claim that the police forced him to write or say what is contained in the statement. He maintains he composed it himself - but is all lies.

Whether an admitted extra curial statement given by the accused is false is matter of fact. Whether it was given freely and voluntarily is a question of law.

As I have already stated, the accused gave his statement freely and voluntarily. He was not induced to do so by any threats of harm on his person; nor were other undue influences brought to bear upon him to give that statement; S v Slatter and Others 1984 (3) SA 798 (ZS).

He had proceeded to make indications freely. The indications he made to the police confirm what the State witnesses observed in respect of where the deceased's body was and generally how the scene of the crime looked like soon after the event.

The accused's statement is also corroborated by medical evidence which show that the deceased was heavily assaulted resulting in severe injuries all over the body.

In any event, there is sufficient circumstantial evidence which points to the accused, and the accused alone, as the perpetrator of the crime.

The dangers inherent in relying on circumstantial evidence were highlighted by KORSAH JA in S v Maranga 1991 (1) ZLR 244 (SC) where…, he states:

“Before I answer this question, I wish to draw attention to the dangers inherent in drawing conclusions from circumstantial evidence. LORD NORMAND observed, in Teper v R [1952] AC 480 at 489, that:

'Circumstantial evidence may sometimes be conclusive, but, it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast doubt on another.

Joseph commanded the steward of his house 'put my cup, the silver cup, in the sack's mouth of the youngest' and when the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it.

It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'”

See also S v Chaluwa 1985 (2) ZLR 121 (SC).

Two witnesses independently confirm the following facts:-

1. The accused was heard quarreling with the deceased on the evening of 25 July 2014.

2. In the quarrel, the accused threatened to assault the deceased.

3. The exchange between him and the deceased indicates that the accused had the motive to commit the crime.

4. The accused was the only person who harboured a grudge against the deceased over witchcraft allegations and had a matter pending before the Chief's court on the subject.

There is no basis, in my view, for the court to reject the evidence of these two critical witnesses. That evidence, on its own, does not implicate the accused. It merely provides the motive for the crime.

The indications, to my mind, demonstrate the accused's involvement in the assault of the deceased. He had the motive to do so. The evidence shows that the accused had attended court where the deceased was expected to pitch up, but, on no less than three occasions, she had not done so. This must have angered the accused. He was bitter that the person he held responsible for the illness was not attending the Chief's Court. He had reason to confront her. That confrontation occurred on 25 July 2014. James Mhlanga and Thomas Maphosa confirmed this.

Although they do not state that the altercation degenerated into an assault, the accused confirmed, to the police, that he had assaulted the deceased on that day. Whether he assaulted her between 6pm and 7pm, as the evidence suggests, or later, is best known by him. The fact remains that the deceased was discovered dead two days later.

Who could have killed the deceased?

All the evidence points to the accused.

He is found guilty of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Questions put to the accused during cross-examination by counsel for the State appeared to be aimed at discrediting the version given by the accused regarding how the stabbing took place.

In our view, the only eyewitness to the event, who is now the accused, gave a reasonably possible explanation which the court cannot dismiss as false. Had the State been able to lead evidence in rebuttal of the defence version, then this line of cross examination would have been quite justified. In the absence of any such evidence contradicting the accused, one must rely on the probabilities of the matter and decide whether the accused's version is reasonably possibly true. It was on that basis that we were unable to discount his version that we decided that the version has not been challenged and therefore remains as the truth in the matter.

The court therefore accepts it.

That version is quite probable given the corroborative evidence led from the 15 years old David Maenda.

Qinisela Sibanda (the accused) stands charged with the crime of the murder of his girlfriend Judith Mlauzi (the deceased) who died in unclear circumstances on 13^th of October 2015 at Galetus Village in Nyamandlovu here in Matabeleland North.

When this matter was initially presented to court, both the State and the defence had opted for the lesser charge of culpable homicide. The court registered its reservations on the correctness of the approach opted for and the State had to reconsider its position. The result was that the case had to proceed on the substantive charge of murder in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The facts in this case, which are not in dispute, are that at the time of her death, the deceased was 33 years old. The accused was 30 years old. The two were in love and all appeared to be well. On the morning of 13^th of October 2015, the deceased's mother sent the deceased to conduct some financial transaction in Bulawayo. When the deceased returned from Bulawayo she was seen in the company of the accused by Mduduzi Mpala, Linda Moyo and Norget Moyo.

That was the last time the deceased was seen alive.

Later on that day, the deceased and the accused had a quarrel leading to the latter fatally assaulting the deceased. The accused secretly buried the deceased's remains in a shallow grave. As fate would have it, the deceased's remains were discovered by Professor Ncube (a 16 year old juvenile) who was looking for cattle. The deceased's remains were in a shallow grave. This discovery occurred three days after the accused had buried the deceased's remains.

From these facts, the State alleged the accused had unlawfully and intentionally caused the deceased's death whilst the accused admitted to assaulting the deceased. He raised the defence of provocation and alleged that the assault he perpetrated on the deceased was meant to moderately chastise the deceased and not to cause her death. It was because of this that the accused offered a plea of culpable homicide.

When the deceased's remains were recovered, they were in an advanced stage of decomposition. The post mortem report concluded that the deceased had died of cervical and head traumas in unknown circumstances.

The post-mortem examination noted subgaleal haematoma on the left frontal region on the scalp with haemorhagic infiltration below subgaleal haematoma. It also noted a skull bone fracture on the left frontal bone.

Analysis of evidence

In this case, there is evidently starvation of direct evidence as it is only the accused who is privy to the actual circumstances surrounding the death of the deceased. It is only the accused person who knows what he used in assaulting the deceased and where on her body he assaulted her.

Despite this, the evidence led by the State is not without significance. The evidence of the deceased's mother, Betty Mlaudzi, is to the effect that when she realised the deceased had not returned home in time she approached her other daughter, Thembie Mlaudzi, to call the deceased on her cellphone.

Thembie Mlaudzi testified to the effect that she indeed called the deceased's cellphone three times and on each of those occasions the cellphone would be deliberately cut. On the fourth occasion, the cellphone became unreachable. The evidence suggests this cellphone was eventually found in the possession of the accused person. The accused person confirmed that it was him who was constantly cutting Thembie Mlaudzi 's desperate calls.

It is quite significant that on the very day that the deceased disappeared, this witness had phoned the accused to enquire the whereabouts of the deceased and the accused was categoric that he had not seen the deceased. On the very day the deceased's remains were discovered, the accused had beeped her on her cellphone and when she returned the call the accused maintained that he had not seen the deceased. It is clear that on all these occasions when the accused faked no knowledge of the whereabouts of the deceased, the truth is he knew that the deceased had died in his hands and that he had secretly buried her remains in a shallow grave.

Mduduzi Mpala's evidence, that when he was going to the shops in the company of two other ladies he saw the accused who deliberately avoided him by hiding, is equally quite revealing. Mduduzi Mpala, who is the accused's cousin brother, was quite clear that on seeing them the accused hid from him and when he turned, after bypassing and exchanging greetings with the deceased who appeared to have been in a jovial mood, he was surprised to see the accused again in the company of the deceased and walking with her.

Under cross-examination of this witness, it was suggested that the witness could have been mistaken about the notion of the accused hiding away from him to which he reluctantly conceded. It was only when the accused was being led in evidence in chief, after the witness had left the witness box, that the accused stated that he had not avoided the young witness but that he had gone to answer to the call of nature. It is quite curious that this pointed suggestion was never put across to the witness to elicit his response.

The evidence of Admire Sibanda suggests that the shovel that was used by the accused, in burying the deceased's remains, was clandestinely taken from the homestead by the accused person.

Young Professor Ncube's evidence shows that the deceased's remains were discovered three days after the deceased had disappeared and on 16 October 2015. This discovery was immediately reported to the police. This was before the accused's arrest on Saturday the 17^th of October 2015.

As stated in his Defence Outline, the accused admits to assaulting the deceased but out of anger. He said that he punched the deceased three times on the side of the head and the deceased fell down and died. Built in his defence was the defence of provocation.

It is therefore necessary to deal with the legal requirements of provocation as a defence.

Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] recognizes the defence of provocation as a partial defence if successfully pleaded.

Put simply, our law recognizes that in certain situations a person may be provoked by another person's behaviour to the extent of losing self-control over his faculties and becomes incapable of forming the specific intent to kill his victim, and, in such situation, the accused would then be found guilty of culpable homicide. But, if despite an accused being provoked he is still able to retain his intention to kill, the provocation will be taken as mitigatory. This position is clarified in section 239(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which is framed as follows:

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

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

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

The accused shall not be entitled to a partial defence…, but the court may regard the provocation as mitigatory as provided in section two hundred and thirty eight.”

In order for the court to closely deal with the defence of provocation, or any other defence for that matter, the court is called upon to thoroughly examine the circumstances the accused person finds himself in.

In the instant case, the circumstances which the accused person found himself in came out clearly when he was being led by his counsel and it was to the following:

“After walking for some distance, a certain man emerged walking from behind us carrying a log. When this man approached us he said, 'where are you taking my girlfriend to?' I said I did not know that she was his girlfriend. At that time, this man struck me with a log on the back of my head and I ran away…,. When I ran away…, he got hold of the deceased and pulled her demanding to go with her but the deceased refused….,. When she refused this man released her and she came back to me.”

The accused went on to say that along the way this incident caused a misunderstanding between him and the deceased. The result was a fight between the two which led the accused to assault the deceased in the manner already alleged.

It will be remembered that before the accused had allegedly fought with the deceased over this man, the deceased had told him that she had had a love relationship which had ended long back but this man was trying to impose himself against her.

It is the court's view that the conduct complained of by the accused as the cause of the assault could not have caused a reasonable person placed in the position of the accused to have lost self control in the manner alleged by the accused. This would be so because instead of going with this unidentified man the deceased chose to stick to the accused. A man who loves someone cannot punish his woman for publicly choosing to stick with him in the manner the deceased did.

The existence of this man was in fact doubtful as evidenced by the accused's failure to seek clarification or the identity of this man from the deceased which would have been the natural thing to do on the part of the accused. To the court, this character remains fictitious. Even if he did exist, the situation that was projected by the accused person could not have led to the accused's provocation.

To further demonstrate the shortcomings of the story told by the accused person, it was only during his evidence in chief that he alluded to himself having fought with the deceased. This fight does not feature in both his Defence Outline or in his warned and cautioned statement. To further compound it, the accused had nothing to show for his alleged injury by the man he alluded to. This goes further to fortify the court's view that this man never existed at all. This character was created by the accused to cloud issues and we make it a specific finding of this court that the story about the accused being confronted and assaulted by the deceased's former boyfriend was a concocted story - it never occurred.

This then paves the way for us to deal with the other aspects of the accused's evidence of the admitted assault on the deceased, with specific reference to the cause of death as expounded in the post-mortem report and the related injuries outlined therein.

In his measured testimony, the accused admitted to having assaulted the deceased using open hands (clapping her once), and thrice with clenched fists below her right ear just above the neck, as a result of which the deceased fell and died. The accused said that in assaulting the deceased he was merely moderately chastising her. He said he did not intend to kill her.

The accused's admitted assault must be consistent with the findings of the post mortem report as regards the cause of death and the other related injuries noted.

The postmortem report concluded that the cause of death was cervical and head traumas in unknown circumstances. In addition, it highlighted a collection of blood on the left side of the skull. Such a collection of blood, as the court understands it, implies such injuries were there before the death of the deceased.

One of the most pronounced injuries highlighted in the post mortem report was “the skull bone fracture on the left frontal bone.”

In the court's view, the fractured skull speaks to substantial or excessive force having been used on the deceased's head. This kind of force, in the court's well-considered view, cannot possibly be consistent with the simple assault conceded to by the accused. The accused was conservative with the truth and his story cannot possibly exonerate him. The defence counsel must be commended for having acknowledged and concluded that in order to bring about the injuries, as captured in the post-mortem report, excessive force must have been used. It is clear that the deceased must have been subjected to a protracted assault with a hard object.

The accused's strange appetite to mislead the court did not end with giving the court a minimal assault on the deceased. His stout effort to mislead the court is demonstrated by his statement in the “Statement of Agreed Facts” (annexure I) that he assaulted the deceased all over the body with an unknown object.

The inconsistencies in the accused's testimony, and the actions that he took after the deceased's death, are a clear testimony of an example of someone who, with his eyes wide open, dives on his own set spear. He must naturally face the consequences of his own conduct.

This is a clear case where the accused's guilt is rooted in circumstantial evidence.

The law on circumstantial evidence can be traced back to 1939 where WATERMEYER JA, in the case of R v Blom 1939 AD 188 laid the foundational guidelines of our present law as follows:

“(a) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(b) The proved facts should be such that they exclude every 'other' reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.”

See also the case of S v Marange 1991 (1) ZLR 244 (SC) per KORSAH JA.

Applying these guidelines on guilt by circumstantial evidence, the proved facts which are found to have been established in this case can be summarised as follows.

(a) The accused was the last person to have been seen in the company of the deceased at or around 18:00 hours on 13 October 2015, as per the testimony of Mduduzi Mpala and confirmed by the accused person himself. When last seen, the deceased was in a jovial mood.

(b) As per his own testimony, the accused person assaulted the deceased and the deceased died on the evening of 13 October 2015.

(c) After the deceased died, the accused person removed the deceased's clothes and hid them.

(d) The accused clandestinely acquired a shovel and a rope which he used to secretly bury the deceased's remains in a shallow grave.

(e) On the day, the accused secretly buried the deceased's remains; he lied to the deceased's sister, Thembie Mlaudzi, that he had neither seen nor knew the whereabouts of the deceased.

(f) That on the 16^th of October 2015, the accused initiated a cellphone to Thembie Mlaudzi who called him back and the accused made a fake enquiry about the whereabouts of the deceased and purported to want to assist Thembie Mlaudzi locate the deceased when he knew that the deceased had died in his hands.

(g) When the deceased's remains were fortuitously discovered by Professor Ncube and a report subsequently made to the police, on 16^th October 2015, on 17^th of October the accused surrendered himself to the police leading to his arrest.

(h) That when the deceased's remains were discovered, the accused admitted to having assaulted the deceased leading to her death. The postmortem report's findings are inconsistent with the manner of assault as proffered by the accused person.

The cumulative effect of all these proven facts point to the accused as the person who killed the deceased. In making this finding, the court is satisfied, beyond a reasonable doubt, that the deceased must have been subjected to a protracted assault on, among other vital organs, the head, and, further, that in doing so the accused must have used an object other than clenched fists.

In subjecting the deceased to an assault as he did, the accused must have subjectively foresaw the real possibility of him fatally injuring the deceased and recklessly pursued with his assault leading to the inevitable death of the deceased.

Consequently, the accused must be found guilty of murder as informed by section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the case of R v Blom 1939 AD 188 it was held that in reasoning by inferences there are two cardinal rules of logic which cannot be ignored;

1. That the inference sought to be drawn must be consistent with all the proved facts. It if is not the inference cannot be drawn.

2. The proven facts should be such that they exclude every reasonable inference from them save the one sought to be drawn; if they do not excludes other reasonable inferences, there must be a doubt whether the inference sought to be drawn is correct.

In S v Taputsa 1966 RLR 662 (A)…, LEWIS JA said that:

“The effect of s 301(2) seems to be that, where there is evidence aliunde proving that the offence has actually been committed, the court may satisfy itself of the genuineness of the confession by the accused that he committed it or took part in it from the nature of the confession itself; where, however, there is no evidence aliunde proving that the offence itself has been committed, the court must, in addition, go outside the confession and be satisfied that it is confirmed by other evidence. In the leading case of R v Blythe 1940 AD 354, TINDALL JA, delivering the judgment of the Full Bench of the Appellate Division, laid down that the confirming evidence required by the statute must be such as to corroborate the confession 'in a material respect', although it need not directly implicate the accused in the offence, and that the statutory requirement, in this regard, was similar to that in respect of an accomplice, as explained by SOLOMON ACJ in R v Lakatula 1919 AD 362. In Lakatula's case, it was said that there should be corroboration in some material respect 'in order that the jury may be satisfied that the accomplice is a reliable witness upon whose evidence they may safely act.'

(See also R v Troskie 1920 AD 466 at 468, per INNES CJ).

Applying this test to confessions, it seems that the confirming evidence need not amount to evidence directly confirming that part of the confession in which the accused actually implicates himself in the commission of the offence; it need only be evidence which is sufficiently corroborative of a material part or parts of the confession to satisfy the court that it can safely rely on the confession as a whole in convicting the accused."

The two accused persons in this matter face a charge of murder. It being alleged that on 13 February 2013, the two accused persons assaulted the deceased resulting in his death on 14 February 2013.

The evidence of the following State witnesses was admitted into the court record, as contained in the State summary, in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07];

(i) Danha Cecilia.

(ii) Freddy Tapfuma.

(iii) Sergeant Chinyerere.

(iv) Constable Mutekwa.

(v) Inspector Maukazuva.

Of these five witnesses, the evidence of the following witnesses has some significance in the case.

Danha Cecilia is the teacher who taught the deceased at Shabanie Primary School. She states, in the Summary, that on 13 February 2013 the deceased reported to school at 0730 hours. He was in good health and condition. She spent the day with the deceased and there was nothing wrong she noticed about the deceased's condition. The deceased dismissed from school at about 1530 hours and he left for home whilst in good health.

Freddy Tapfuma resides at BB118 Maglas Township, Zvishavane. The deceased was his classmate. He last saw the deceased in good health; the deceased was even playing with his friends; the deceased left for home on the day in question without having complained of any ailment. The following day, the deceased did not report for school and the witness later learnt the deceased had died on that day.

Seargent Chinyerere's evidence is to the effect that he was on duty when Accused Two reported to him the deceased had died after complaining of a severe headache and vomiting. He compiled the necessary documents to enable a doctor to conduct a postmortem examination. Accused Two later came in the company of Accused One stating that the doctor had refused to conduct a post-mortem examination of the body of the deceased as the doctor had observed some bruises on the deceased's head and that the arm was swollen. He asked the accused persons how the deceased sustained those injuries and they failed to give a satisfactory answer resulting in their arrest.

The State called Rudo Hove to give viva voce evidence.

She told the court that she had just started living with Accused Two and the deceased; the Accused Two being her landlady. She started staying with them on 3 February 2013. On 13 February 2013, when she came back from work, she found Accused One and Wizzy seated by the veranda. She greeted them and proceeded to her room. Later, the deceased came with Accused Two; Accused Two then warned the witness not to leave her door unlocked as the deceased would steal. She said she had tried to discipline the deceased to no avail and the witness then proposed spiritual healing. She then told the witness that an uncle would come to chastise the child that evening. Later that evening she heard the deceased crying being assaulted with a sound 'bhuu' “bhuu” emanating from the assault; she heard a male voice say keep quiet, sit down. The assault took about an hour but was at intervals; there would be moments of silence and people talking. She then fell asleep.

Later that evening she woke up to hear Accused Two tell Accused One that the deceased is refusing to take a bath; she then heard Accused One say take a bath and the deceased saying he was unable to. She then fell asleep. She told the court that although she had been living there for about ten days she knew Accused One's voice and she could tell that he is the one who was talking telling the deceased to bath. She said whilst she never conversed at length with Accused One, he frequented that place and she would hear him talk while in Accused Two's house, talking to Accused Two.

She said the following morning Accused Two told her she was going for prayers. Accused One then came looking for Accused Two but not did find her. This was after about fifteen minutes of Accused Two leaving. Accused Two later came and told the witness that the uncle had assaulted the deceased in a bad way and that he assaulted the deceased until he vomited a watery substance. She then asked what the deceased had eaten and was told that the deceased had eaten rice. She then commented that there were ways of chastising a child that would not assist anyone.

Doctor S. Pesanayi, in the post mortem report, made a finding that the deceased died from -

(i) Subarchnoid Haemorrhages.

(ii) Blunt Force Trauma to the head.

(iii) Assault.

(iv) Homicide.

We then pause to assess Rudo Hove's credibility as a witness.

To start with, Rudo Hove has not been shown anywhere in the court record to be an interested witness in this matter. We take her to be an independent witness as save for being a tenant she has not been shown to have related with these people in any other way so as to make her an interested party in the matter.

There was no bad blood amongst the three i.e. Accused One, Accused Two and herself.

Rudo Hove could not have fabricated an assault in her mind only for the Doctor at Zvishavane District Hospital to find injuries on the deceased's body as well as Doctor S Pesanai who confirmed that the deceased was indeed assaulted.

Rudo Hove could thus not have fabricated an assault that never was; which assault the doctors, who are independent State employees, would also confirm.

Rudo Hove did hear the deceased being assaulted in the manner she describes because her evidence is indeed consistent with the doctor's findings.

Again, Accused Two told the court that the deceased went to play outside before supper, un-injured, came for supper, and after supper he watched TV, still uninjured, in the dining room; meaning the deceased was at home that night. If the deceased died from injuries as a result of an assault then indeed an assault was perpetrated on him that particular night.

Again, Rudo Hove says she was told by Accused Two that the uncle, whom she perceived to be Accused One, would chastise the deceased that night, and, indeed, the deceased must have been chastised that night for he could not have suffered injuries miraculously on that day.

Again, Rudo Hove told the court that Accused Two left for prayers in the morning of 14 February 2013, and, indeed, Accused Two did go for prayers that morning according to the defence case.

Again, Rudo Hove told the court that Accused Two told her that “uncle” had chastised the deceased badly until when he vomited, and, indeed, the deceased had been assaulted, as per the doctor's findings. Also, the deceased, according to Accused Two, did vomit on that day.

Even during cross examination, Rudo Hove was never shown to have told lies in her evidence-in-chief. In fact, if Rudo Hove was anything she was a fair witness, in the court's view, for she did not seek to tell the court that she saw the assault being perpetrated or that she was definite 100% on whose male voice it was which spoke while the deceased was being assaulted. She told the court she believed it was Accused One but could not be 100% certain on that point. She told the court that she heard Accused One tell the deceased to take a bath later that night.

It is for these aforestated reasons that we find Rudo Hove to be a credible witness as there is no other reasonable finding that the court can make with regard to her evidence….,.

We now move to assess the defence case.

Accused One told the court that he had been tasked by Accused Two's husband to take a caretaker's role over Accused Two as she suffered from fits. He lived about 130m from Accused Two's place. On 12 February 2013, Accused Two told him that the deceased suffered from a headache but that he had gone to school.

He went there the following day and found Wizzy seated on the veranda. He had gone there to seek for and buy chicken cuts. He sat in the veranda with Wizzy. Rudo Hove entered and greeted them. Accused Two and the deceased also came; he asked the deceased how he felt and he said that he was fine. He then bought relish, that is chicken cuts, and went back home. This was around 6:20pm. He left Wizzy seated on the veranda. Accused One never entered Accused Two's house.

In the following morning, while in the garden, he heard his phone ring from within the house; he took it and realized it was Accused Two; he then kept it in his pocket. She then called around 6:45am; she invited him to get to her place. Her voice was hoarse. He saw Accused Two and Wizzy getting into their gate; he also got in.

It was then that he noticed Accused Two looking down shedding tears. She then told him the deceased had died. He was also told that the deceased had vomited. He asked where the corpse was and he was told it was in the bedroom; he uncovered the face and saw a scratch on the right cheek.

He went to the police to report and was told to take the corpse to hospital. He was nowhere near Accused Two's house between 8-11pm on 13 February 2013. He never saw Accused Two assault the deceased.

Now, in the Defence Outline, Accused One's version differs from the one given in court in the following respects:

In paragraph 8 of the Defence Outline, Accused One would state that on 13 February 2013 he visited Accused Two's place to check up on the deceased whom he had been told was suffering from a headache. However, in his evidence in chief he told the court that he had gone there for chicken cuts. Accused One's mission on 13 February 2013 is therefore not clear as per his own case.

Again, in the Defence Outline, paragraph 13-15, Accused One would tell the court the following:

“That in the morning of 14 February 2013, the first accused person was called by the second accused who hysterically told him that the deceased appeared dead. That the first accused was further told that when Accused Two had gone to wake the deceased, she realized that the deceased had died and that there were some vomits on the deceased.

That first accused rushed to accused's residential place and was further told of the fate of the deceased. He then helped Accused Two ferry deceased to the hospital whereupon they were told to take the deceased to the police station first.”

Now, in his evidence-in-chief, Accused Two called him and invited him to her house, whereupon he met Wizzy and Accused Two by the gate. It was then that he noticed Accused Two looking down shedding tears. That's when he learnt of the deceased's death.

Now, from Accused One's own case, it is not clear what transpired on the morning of 14 February 2013; was he found by Accused Two who told him hysterically that the deceased appeared dead and that he had vomited? Or was he only invited to go to Accused Two's residence and later saw Accused Two look down and shed tears, and thereafter tell him about the death?

Now, Rudo Hove places Accused One at the scene of crime on the night in question; that is when the deceased was being told to take a bath. Accused One having been placed by Rudo Hove at the scene of crime. We have already found Rudo Hove to be a credible witness.

Accused One then tells us, in his defence, that he was never at the scene of crime on the night in question. Of cause, the court notes that his residence was just about 130m from Accused Two's residence; that distance being a walking distance. In his defence case, he tells two diverse versions on the reason he went to Accused Two's residence on that night. On one hand he tells the court he had gone to buy relish, on the other hand he tells the court he had gone to check on the deceased. Rudo Hove tells the court that according to Accused Two, Accused One was to chastise the deceased on that night; now that Accused One cannot tell us a clear reason for having gone there that day, the court has no option but to reject his diverse reasons on his mission to Accused Two's residence on that day. He must have gone there to chastise the deceased as per Rudo Hove's testimony.

Again, the following morning he says he was phoned by Accused Two who hysterically told him that the deceased appeared dead and had vomited. But, again, he tells us, in his evidence-in-chief, that Accused Two simply invited him to her residence then looked down and shed tears telling him the deceased had died - which is which? What is Accused One's version of events with regard to that fact? Again, it is not known for his own case gives two diverse versions.

Accused One is lying; he is at the scene of the crime on the night in question as per Rudo Hove's evidence and is telling different stories because he has fabricated a defence to save his skin from the offence.

We say so for there is credible evidence placing Accused One at the scene of the crime on the night in question.

The State case, as it relates to Accused One, hinges partly on real evidence, that is Rudo Hove hearing Accused One telling the deceased to take a bath at about 11pm on the night in question soon after the assault, and, partly on circumstantial evidence in that she heard Accused One would be chastising the deceased that night and she saw Accused One at Accused Two's residential on that day; she also heard a male voice which she believed to be that of the first accused while the deceased was being assaulted. It is also common cause that Accused One played a caretaker's role at Accused Two's residence.

Now, the rules relating to circumstantial evidence are as follows:

In the case of S v Blom 1939 AD 188 (A)…, the cardinal rules of logic in drawing inferences in criminal trials were given as follows:

(1) The inference to be drawn must be consistent with the proven facts.

(2) The proved facts must exclude all other inferences except the one sought to be drawn.

Now, the proved facts, as they relate to Accused One in this matter, are that Accused One was indeed at Accused Two's residence on the night of 13 February 2013, although he says he left after 6pm, he was indeed there. Rudo Hove heard Accused One's voice, which she was familiar with, at about 11pm ordering the deceased to take a bath. While the deceased was being assaulted, a male voice was present telling the deceased to keep quiet and to sit down. Accused One had a caretaker's role on Accused Two and he frequented the place. Accused One gives two different reasons for his visit to Accused Two's residence on 13 February 2013. Accused One narrates two different stories with regard to how he learnt of the deceased's death. Rudo Hove was aware of the fact that Accused One would come to chastise the deceased that night.

Accused Two told the court that she decided to notify Accused One first of the deceased's demise - before neighbours who were closer to her; before family; and before the deceased's parents.

These proved facts point towards only one inference, that Accused One was indeed present at Accused Two's residence when the deceased was being assaulted and that in fact he is the one that assaulted the deceased together with Accused Two.

Accused One was at the scene and this court draws the inference that he partook in the assault because he himself, whilst denying having been there at all, he firstly gives different reasons for his mission on 13 February 2013; he also explains the events of 14 February in two different versions; if indeed he was not culpable he would have no reason to tell two different stories on the event.

It is our finding that the cumulative effect of the facts, as they relate to Accused One herein, do point towards his guilt.

With regard to proof beyond reasonable doubt, it was stated in the case of Isolano 1985 (1) ZLR 62…, that:

“The State is required to prove the guilt of the accused beyond reasonable doubt; proof beyond reasonable doubt requires more than proof on a balance of probabilities. It is not, however, proof to an absolute degree of certainty or beyond a shadow of doubt. When there is proof beyond reasonable doubt no reasonable doubt will remain as to the guilty of the accused. If a reasonable person will still entertain a reasonable doubt as to whether accused is guilty, the accused is entitled to be acquitted. Fanciful or remote possibilities do not introduce a reasonable doubt.”

Professor G. FELTOE, in the Judges Handbook, 2009 Edition…, states as follows on proof beyond reasonable doubt. He quoted the case of Isolano 1985 (1) ZLR 62 that I have referred to herein and then expands on that point as follows:

“To be reasonable doubt, the doubt must not be based on pure speculation but be based upon a reasonable and solid foundation created either from the positive evidence or gathered from reasonable inferences not in conflict with or outweighed by the proved facts.”

He goes on to say -

“It is not necessary for the State to prove every single individual fact in a criminal case beyond reasonable doubt although the State must prove beyond reasonable doubt a fact which is particularly vital and upon which the whole case hinges. The question which needs to be asked is:

Do all the facts, taken together, prove guilt beyond reasonable doubt?

Even a number of lines of inferences, none of which would be decisive, may, in their total effect, lead to there being proof beyond reasonable doubt.”

In this case, the deceased was certainly assaulted as per the post mortem report. Rudo Hove knew of a plan to chastise the deceased by Accused Two and the uncle. Rudo Hove heard the deceased being assaulted that night. A male voice was there when the assault was perpetrated. Accused One was present at Accused Two's residence at about 11pm - the same night as per Rudo Hove's testimony. The following morning, Accused Two liaised with Accused One, to the exclusion of neighbours, on the deceased's death. Accused One has given two reasons on his mission at Accused Two's house on 13 February 2013. Accused One gives two diverse versions on what transpired on the morning of 14 February 2013.

The cumulative effect of the events of 13 and 14 February 2013 do point, without any reasonable doubt, to the guilt of Accused One. It is for these reasons that this court finds that Accused One was present at Accused Two's residence on the night the child was assaulted. His denial thereof and his diverse reasons on his mission there as well as the diverse versions on what transpired on the morning of 14 February 2013 can only be taken by this court to buttress Rudo Hove's evidence that indeed she heard Accused One's voice at about 11pm on the night in question ordering the deceased to take a bath.

We then move to deal with Accused Two.

Accused Two told the court that the deceased suffered from a headache but he went to school on 13 February 2013. The deceased appeared healthy although he complained of a headache. On the night in question, she locked her doors shortly after 7pm and retired to bed leaving the deceased who was watching TV in the dining room. The deceased was never assaulted in her presence; she shared the same bedroom with the deceased. She also confirmed that Accused One played a caretaker's role on her. She woke up in the morning, prepared porridge, and went for prayers. She later came to wake the deceased up and discovered he had died; the deceased had vomited. The previous night when she retired to bed leaving the deceased in the dining room she did not notice any injuries on the deceased.

Now, Accused Two is the custodian of the deceased. On that night, the deceased was in her custody with no injuries whatsoever; Rudo Hove heard the deceased crying being assaulted. The postmortem report points towards an assault. Accused Two never heard anything; these people live in a four-roomed house. It would be absurd and fanciful, as given in Isolano 1985 (1) ZLR 62, for us to accept that Accused Two does not know what happened to the deceased.

The State has, again, in relation to Accused Two, discharged the onus on it to prove her culpability. The totality of the evidence, as given before us, shows that Accused Two cannot be absolved from the knowledge of what happened to the deceased as her custodian.

Again, Accused Two, in paragraph 29 of her Defence Outline, she states that upon discovering the deceased's lifeless body she then phoned Accused One who came and assisted her to ferry the deceased to hospital.

In court, while being asked by defence counsel in relation to matters arising after questions by the court, she said that she never spoke to Accused One on the phone; that she called him, he did not answer but later came.

She also said, in her Defence Outline, Accused One assisted her to ferry the deceased to the hospital and later to the police; that they ferried the deceased to the hospital and later went to report the matter to the Zimbabwe Republic Police (ZRP) whereupon they were arrested for murder.

The admitted evidence of Sergeant Chinyerere is also to the effect that Accused Two reported the deceased's death to him and then went to the hospital to come back later in Accused One's company.

She, however, denies ever being part of the team that went to the hospital and to the police station in her evidence in chief.

Accused Two clearly is giving a bold defence in that it is common cause that the deceased, who was in her custody, was assaulted between 13 and 14 February 2013. She is the one who says no other person came to the house on the night in question. She locked the doors when she went to sleep. The only logical conclusion is that what transpired on the night in question, as stated by Rudo Hove, is indeed what transpired. Accused Two is merely trying to evade culpability when she acts like the assault on the deceased was a miracle.

This court is enjoined, therefore, to draw the following conclusion with regard to this matter;

The deceased was assaulted by both accused persons in the manner described by Rudo Hove. The post-mortem report confirms this, and Doctor S Pesanai, who gave viva voce evidence, eliminated a headache as a cause of the deceased's death but insisted that he concluded that the deceased died as a result of an assault. We have already found how Accused One was placed at the scene by Rudo Hove and how we find that he is equally culpable. We accordingly find that both accused persons did act wrongfully and unlawfully on that day.

We then move to assess what they are guilty of.

Rudo Hove told the court of the accused persons plan to chastise the deceased. She did not see what was being used to assault the deceased. Dr S. Pesanai says the abrasions were consistent with a switch or other similar object. He concluded that the injuries on the head were as a result of blunt force trauma. It is however unknown what object was used to inflict them. The length of the assault was about an hour but there were intervals when it would stop. We can thus not infer intention from these facts. The only logical conclusion the court can arrive at is that in their bid to chastise the deceased, Accused One and Two were negligent in their persistent assault resulting in the deceased sustaining fatal injuries.

It is for these reasons that both accused persons will be found guilty of culpable homicide.

It was suggested by the defence counsel that this court should find that there is a gap in the State case as the first State witness did not see what then transpired between the accused and the deceased as he ran away.

We reject this theory for two reasons.

Firstly, the first witness saw the altercation between the accused and the deceased, and, as they ran away from the accused, when he was about a few metres away, he heard the deceased scream that you have killed me. He said this whole event took about three minutes. So one cannot hold that more happened between the deceased and the accused during the first witness's absence as in the Zvobgo case that was cited.

Secondly, while in the Zvobgo case it is not known what happened in the room leading to the court giving the accused person the benefit of the doubt, in this case, the first witness saw the altercation between the accused and the deceased and it would be absurd to find that perhaps something else (i.e) another form of altercation could have occurred as they fled with the first witness running in front and the deceased running behind. The accused person himself even confirms that when he stabbed the deceased, the deceased was fleeing; so there is no other gap that can be said to exist in the State case.

It is for these reasons that we find that the accused person did act wrongfully and unlawfully on the day in question.

The facts of the matter, which are largely common cause, are that on 1 January 2012, the accused and the deceased were at a beer drink at Sabina Kutsvara's homestead. Sabina Kutsvara is the accused's second wife and the deceased's mother.

The deceased is the accused person's step-son.

The beer had been brewed by Sabina Kutsvara. At about 20:00 hours, the accused and Sabina Kutsvara had a misunderstanding resulting in both of them engaging in a scuffle. This caused the deceased to intervene and the scuffle stopped. The deceased, however, proceeded to spill the beer that was being sold. This angered the accused person who confronted the deceased. The two started tussling and ended up in a cotton field. It is there that the accused person then stabbed the deceased with an okapi knife. The knife belongs to one Phineas Mahlathini whom the accused had disarmed earlier as a way of avoiding the usage of dangerous weapons at the beer drink.

The post mortem report, exhibit 4, gives the cause of death as haemo pneumothorax. I should comment at this juncture that the post-mortem report, as provided in this case, is not explicit and informative at all. It must provide the court with the nature of the injuries and a detailed account not just the conclusion.

At the cotton field, there was no eye witness the other people having remained at the homestead and not being able to see what transpired there as it was then dark.

The accused person's version is the only version that is available at that crucial stage.

His evidence is that the deceased pinned him down, kicking him; and since he had the knife which he was in possession of, after disarming one of the patrons, he then used it lashing at the deceased trying to scare him; in the process stabbing the deceased. He says he did this so as to scare the deceased and force him to stop attacking him.

The accused's version of events at this juncture has not been disputed by the State as it could not adduce any other evidence to the contrary. It is at this juncture that the State counsel conceded that the accused person's plea of guilt to the lesser offence of culpable homicide could not be challenged by it as it did not have evidence of what transpired at the critical moment save for the fact that it is common cause that eventually the accused person then stabbed the deceased causing his death.

The concession by the State was properly taken, in our view, as the accused's version of what transpired at the cotton field is the only version that the court can rely on, and, as such, the fact that the accused person used the knife in a bid to free himself from the deceased's attack cannot be refuted. It is this court's view that the facts of the matter do not meet the requirements for self defence, as provided for in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and the accused person correctly offered a limited plea.

It is for these reasons that the accused person shall be found not guilty on the charge of murder but will be convicted of the offence of culpable homicide.

The appellant was convicted by the High Court sitting at Bulawayo on 21 July 2005 of murder with actual intent as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to death after the court found no extenuating circumstances.

No Notice of Appeal was filed in this matter on behalf of the appellant, only heads of argument. However, because there is an automatic right of appeal against the death sentence, it shall be assumed that the appellant herein is appealing against both conviction and sentence and that the grounds of appeal are related to his Defence Outline and other submissions made in the course of the trial and sentence. In other words, his appeal is a challenge of the findings of the court a quo with respect to both conviction and sentence.

Counsel for the appellant, in the heads of argument filed on behalf of the appellant, correctly conceded, and as shall be shown below, that there were no meaningful submissions that could be made against either conviction or sentence and that both the conviction of murder with actual intent and the sentence of death were properly returned by the court a quo.

The facts which are common cause are that the appellant, who was twenty-three (23) years old at the time of the commission of the offence, was employed as a gardener by the deceased, Mr John Jenks, a male adult who was seventy (70) years old at the time of his death. They both stayed at House Number 3, 21 Avenue, Famona, Bulawayo; the appellant living at the worker's quarters while the deceased stayed in the main house.

On 9 November 2002, the appellant struck the deceased on the back of his head with an axe, killing him instantly. The appellant then dug a shallow grave at the back of the house in which he buried the deceased's body. On 9 and 13 November 2002, the appellant sold the deceased's household property, namely, a 12 cubic feet Imperial refrigerator and a display cabinet, representing himself as the legal owner thereof.

On 19 November 2002, the appellant was arrested in connection with the death of the deceased and he indicated to the police where he had buried the body of the deceased. The body of the deceased was exhumed and taken for a post mortem examination which showed that the cause of death was a compound comminuted skull fracture as a result of assault.

The appellant was charged with the offence of murder, convicted, and sentenced to death as already pointed out.

In order for this Court to quash the conviction and sentence of the appellant, there had to be a misdirection apparent from the record sufficiently serious to vitiate the proceedings of the court a quo. Accordingly, I shall examine…, whether the court a quo erred in any one or more of the following respects -

(i) In finding the testimony of the appellant as not credible;

(ii) In finding that the appellant did not act in self-defence;

(iii) In concluding that the appellant killed the deceased with actual intent; and

(iv) In imposing the death penalty upon the appellant.

CREDIBILITY OF THE APPELLANT

The appellant was found, by the court a quo, to be an unreliable witness as he gave different, and, at times, conflicting accounts of the circumstances leading to his striking the deceased with the axe.

Firstly, he told the court that it was because the deceased had sodomised him. On being probed, he stated that he had killed the deceased in self-defence. Even with regards to the weapon used he stated that he killed the deceased with a metal rod only to change, under cross-examination, and say he used an axe. This part of the appellant's evidence was carefully analysed by the learned Judge in the court a quo as follows:

“We find that the Accused's evidence was full of inconsistencies. For example, in his evidence-in-chief he stated that the reason why he killed the deceased was because he was refusing his money (for wages and painting); and that he felt that the deceased was responsible for the semen he found on his thighs. But when they probed him further, he stated that he struck the deceased because his (own) life was under threat. In his evidence-in-chief he states that he used a metal rod to strike at the deceased, but, under cross-examination, he stated that it was an axe.”

Now, the test to be applied before a court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD…,. and quoted with approval in S v Chidunga SC21-02 as follows:

“No onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

The above test was aptly applied by the learned trial Judge as he came to the conclusion that the appellant was an evasive witness who could not be believed.

It is trite that a superior court does not lightly interfere with the findings of a lower court on the issue of credibility. See S v Bezuidenhout SC122-02. In Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA stated this principle thus:

“Where the question on an appeal from the decision of a judge is one of credibility…, an Appellate Court would be loathe to reverse the conclusions arrived at by the trial judge, who had seen and heard the witnesses, unless it is clearly demonstrated that he had fallen into error.”

In this case, the conclusion by the court a quo is a result of a fair and balanced assessment of the evidence which this Court cannot lightly interfere with. There are other instances in the case, where the appellant clearly lied, which further dented his credibility. For example, he initially claimed to the police that the deceased had gone to Victoria Falls and had given him the property to sell before revealing that he had killed and buried the deceased. His assertion that he had been instructed by the deceased to sell the household goods, and that the deceased had communicated with the buyer to that effect, was firmly refuted by the unchallenged and credible evidence of the buyer, Leonard Ncube, who stated that the appellant had approached his firm, Phoenix Security, in his individual capacity and signed for the sold property as the legal owner and that the deceased had never communicated with his firm.

In the light of the above, the court a quo rightly rejected the appellant's version of events and held that the appellant struck and killed the deceased on 9 November 2002, looted, and sold his household goods….,.

DID THE APPELLANT HAVE ACTUAL INTENTION TO KILL?

The appellant was the only witness, as the perpetrator, of the actual occurrence of the crime, and, thus, there is no direct evidence as to his intention.

However, counsel for the respondent submitted, and, in my view, correctly so, that where there is no direct evidence as to the intention of the accused such intention can be inferred from the surrounding circumstances as was done in the case of S v Mugwanda SC19-02.

In the present case, the following circumstances are highly suggestive of an actual intention to kill -

(a) The nature and seriousness of the injuries inflicted, as per the post-mortem report, and the vulnerability of the part of the body; the back of the head, to which the blows with an axe were directed.

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

(b) After striking the deceased, the appellant, as per his evidence, rather than render help to the victim, who was still alive, chose to visit his house at the other end of town in Matshobana Township leaving the deceased lying on the floor.

(c) After killing the deceased, the appellant buried him in a shallow grave, in secret, continued to occupy the house of his victim as if nothing had happened and proceeded to loot and sell his household goods.

These actions are suggestive of murder with actual intent for the purpose of robbing and benefitting from the deceased's property.

Thus, after taking into account the above circumstances, cumulatively, the court below did not misdirect itself in concluding that the appellant killed the deceased with actual intent.

The accused person was 43 years old at the time of the alleged offence, on 27 January 2000, and was residing at his homestead in the Wabayi area of rural Gwanda under Village Head, Matshina Ndlovu. 16 years and 4 months down the line he is appearing before us, at the age of 59, charged with the murder of his daughter Sisasenkosi Moyo who was aged 5 years when she died.

The accused has pleaded not guilty to the charge.

The allegations are that on 27 January 2000 the accused's wife had left the deceased under the care of the accused when she went looking for her missing sister. In the early hours of the following morning, that is at about 0500 hours, the accused had reported to a neighbour that the deceased was dead. Indeed, her body was found lying in the kitchen with a big gash on the forehead, a missing forearm and was partially burnt leading to the eventual arrest of the accused person.

In his Defence Outline, the accused has stated that he was indeed left in charge of his daughter by his wife, Gladys Mpofu, on 27 January 2000. He and the deceased had worked in the fields in the morning before he later did domestic chores at the homestead. He started drinking what he calls “some brewed spirit.” It was after he had started drinking that he realized that the deceased's clothes, which she had been putting on, were dirty and he washed those clothes. He continued drinking alcohol and proceeded to Phineas Ndlovu's homestead where there was a beer drink but returned to his homestead and slaughtered a chicken. After dinner he and the deceased retired to the bedroom where he continued drinking but he later slept leaving the deceased reading.

The accused went on to say that it was at midnight when he woke up and discovered that the deceased was not in bed. He went to look for her in the kitchen where, upon arrival, he beheld the body of the deceased lying on the floor with her face smashed by the ridge of a tripod - dead. He says he removed the body from the tripod and covered it with a blanket before proceeding to notify his neighbour, Gift Sibanda, of the death.

The State lined up ten witnesses to prove its case but owing to the unexplained delay in the commencement of the trial three key witnesses, namely, Matshina Ndlovu, Ndazu Ndlovu and Philimon Moyo who had played central roles in bringing the accused person to book, have since died. In addition, the arresting police detail, Elvis Mwakajila, then attached to CID Gwanda, who had gathered the evidence, is said to have since left the police service and could not be found….,.

The evidence of Milton Mkize, Ronald Mhene and Doctor Mukwendi Kashalala Kayembe was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it appears on the State Outline.

According to Milton Mkize, an attested member of the Zimbabwe Republic Police, based at CID Gwanda, on 1 February 2000 he attended the scene of crime in the company of the Investigating Officer and interviewed the accused person. He told them that on the day in question he had consumed copious amounts of the illicit brew known as tototo. Of course, when the accused gave evidence in court he changed the brand of liquor to what he called “hot stuff” mixed with a soft drink.

According to Milton Mkize, the accused narrated to the police officers that the deceased had disappeared from bed leaving him fast asleep heavy with alcohol. The witness recorded a warned and cautioned statement from the accused which was later confirmed by a magistrate at Gwanda on 16 February 2000. The statement itself was produced in court.

It is a lengthy and detailed statement in which the accused set out, in chronological order, the events of 27 and 28 January 2000 from the time he was left in charge of the deceased by his wife right up to the time of his arrest. It reads in part:

“After driving the cattle, I then passed by Phineas George Ndlovu's homestead, since their home is near the River Tuli. I then asked Phineas Ndlovu whether Nomagugu's mother had not passed by his place. Phineas replied that she had not passed by his place.

At that juncture, I was still wearing the clothes which I was wearing in the morning, consisting of a cream long sleeved shirt and a cream pair of long trousers. I went back to my home and cooked some chicken of which I left slaughtered after it had fallen into (a) pail of water.

We ate food, I then went to bedroom together with Sisasenkosi. When I got there, I drank some more of my 'tototo.' I then retired to bed at seven in the evening leaving Sisasenkosi browsing through some books whilst seated at the table. Before going to bed I first closed the door. I fell into a deep sleep for sometime before I woke up.

I woke up in the middle of the night then searched around the bed with my hand for the child and could not find her. I woke up and found the door open, I went outside looking for the child until I got to the kitchen hut. When I got to the kitchen hut I found Sisasenkosi Moyo having fallen onto a metal tripod stand and her face was smashed onto the ridge of the tripod stand…,.

I then retrieved her from the top of the tripod stand, but by then she was dead. I then placed her on the floor. Thinking it was around 0300 hours in the morning. I stood for a long time thinking, I then took a blanket and covered the body and left to inform Gift Sibanda who is my neighbour about the tragedy. I took him to my home to see for himself the tragedy after which we notified other villagers on Friday morning…,.”

The admitted evidence of Dr Kayembe is to the effect that he examined the body of the deceased at United Bulawayo Hospital mortuary on 3 February 2000 and compiled his findings in the post mortem report number 75-69-2000 which concluded that the cause of death was multiple injuries and assault.

The post mortem report itself was produced in terms of section 278(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section provides that an affidavit by the doctor who has carried out an examination stating that he or she carried out such an examination and ascertained facts and arrived at an opinion, shall be prima facie proof of those facts and that opinion “on its mere production.”

The doctor who conducted the post-mortem observed that the time of death was 1900 hours; that the deceased was 90cm in height; and he noted the following marks of violence:

“(a) Laceration right forehead (7 x 3cm) left arm (8 x 4cm).

(b) Below elbow amputation left arm with dislocated elbow joint and missing radius.

(c) Burns involving the head, limbs, abdomen, back and buttock 32%.”

He also noted a skull fracture of frontal and left parietal bones, fractures in the anterior and medial left cranial fassae. In addition, there was extensive brain damage. The doctor concluded;

“The injuries observed, besides the burns due to hot water, were caused by a sharp and heavy object like an axe.”

He made a finding that the cause of death was multiple injuries due to assault. The admitted evidence and that which cannot be disputed prove the following, that;

1. The accused was left in charge of the 5 year old deceased by her mother on 27 January 2000.

2. During the day, he was putting on a cream long-sleeved shirt and a cream pair of long trousers. These are the same clothes which he was putting on when he met Phineas George Ndlovu.

3. It is the accused who first found the body of the deceased. When he did that, in the middle of the night, he retrieved the body from the tripod while still alone and lay it on the floor and covered it with a blanket.

4. After that, he proceeded to notify Gift Sibanda, his neighbour, of the death.

5. The accused told the police that he had been drinking tototo and not hot stuff that he mentioned in court.

6. The deceased died as a result of multiple injuries due to assault. The injuries, which included skull fracture and brain damage, were caused by a heavy object like an axe. She also had 32% hot water burns.

7. The body of the deceased was found with the left forearm missing and it was never recovered after it was crudely amputated at the elbow joint position.

Over and above the admitted evidence and that which was produced in terms of the law, the State led evidence from three more witnesses, namely, Gift Sibanda, Albert Ndlovu and Phineas George Ndlovu.

Gift Sibanda is a neghbour of the accused who was awakened by the accused in the morning of 28 January 2000. He woke up to the sad news that the deceased had died. As he and the accused found their way to the scene, he says he inquired from the accused as to what had transpired only to be told that the child had fallen on top of a metal tripod stand at the fireplace. Upon arrival, he found the body still on what he described as a small tripod stand but covered with a blanket. The stand did not have protruding edges but only raised ridges. He removed the blanket and observed an injury on the right frontal part of the forehead and signs of burns towards the buttocks. It had a missing left forearm. The clothes she was wearing did not have any blood.

Gift Sibanda also observed a small pot which was by the fireplace. It was empty. He did not observe any blood. Although the accused said he had discovered the body during the night, between 2100 and 2200 hours, he had only alerted the witness in the morning.

Albert Ndlovu is another neighbour of the accused who had passed by the accused's homestead on the evening of 27 January 2000, at about 5pm, going to a funeral wake. He saw the accused chopping firewood in the company of the deceased. The following morning he was on his way to the funeral when he received the news that the deceased had died.

When he attended the scene, he was told by the accused that the child had been cooking when she fell onto the fire. He observed some pots on the floor which had chicken offals. When he enquired from the accused what had happened to the missing arm, he was told that it had been eaten by dogs. A search around yielded no bones. He observed blood on the floor of the kitchen. He observed that the clothes the deceased had been wearing had been washed although they still had signs of blood on them.

Phineas George Ndlovu is yet another neighbour who had been visited by the accused at sunset on 27 January 2000. He observed that his clothing, a white shirt and a yellowish pair of trousers were blood- stained. When he inquired from the accused as to why this was so, the accused had not given a satisfactory answer; content to say may be he had fallen or maybe he would be visited by the police. The accused had been in a drunken state. The following morning he was advised by Gift Sibanda about the deceased's death and attended the scene. He noted that the accused had changed the blood stained clothing he had been putting on the previous day and that the deceased's clothing had been immersed in water.

The presentation of the evidence of the State witnesses was generally satisfactory. Although a long time has lapsed since the events of the death of the deceased, the three witnesses still testified fairly well in what they observed. Only Gift Sibanda seemed to stray but only when asked to speculate about what could have caused the injuries and what happened to the missing left forearm, things for which he had no direct knowledge. He only said it was possible that the gash on the forehead could have been inflicted by a fall onto the tripod and that it was possible that the forearm could have been chewed off by dogs. Speculation not helpful at all.

The accused person also gave evidence.

He quickly recanted the narrative contained in his confirmed warned and cautioned statement, which was given when events were expected to have been fresh in his mind. He even departed from the contents of his Defence Outline. For instance, while in the caution he said he had been putting on a cream long sleeved shirt and a cream pair of long trousers, as observed by Phineas Ndlovu, he testified, in court, that he had been putting on a brown trousers and a white T-shirt under a yellowish shirt.

While in the caution he said he retrieved the body of the deceased from the tripod stand and placed it on the floor while still alone at about 0300 hours, he changed that during his testimony. He said he did that together with Gift Sibanda. In both the caution and the Defence Outline, he said nothing about the deceased's forehead being stuck in a protruding metal on the tripod - something he insisted on in his evidence. Indeed, during the trial, he invented this story of carrying a plate of offals backwards and forth from the kitchen to the bedroom and the deceased also waking up in the dead of the night to transport the plate of offals back to the kitchen - which does not appear anywhere else.

A closer look at the accused's three versions shows that the Defence Outline is closer to the warned and cautioned statement and that his evidence in court became stranger and stranger as he continued to conjure a new defence as he went along. In the end, his testimony assumed not only chameleon colour changes in response to whatever was thrown at him at any one time but also the complexion of a fictious novel.

Hence, he found nothing wrong with the very improbable story he fed the court that a 5 year old girl would be allowed to cook by the fire on her own and would wake up in the middle of the night and find her way to the kitchen for no other reason but to roast or cook chicken offals not afraid of the darkness. Therein also lies the desperation to invent the story of carrying a plate of offals to the bedroom while leaving behind, in the kitchen, the rest of the cooked chicken. Its all un-mitigated falsehood which is as improbable as it is a figment of an idle mind.

But then there is method on all this. There has to be a reason why the accused was at pains to invent theories about how his daughter met her death when he did not have to really. It is because he was intent on hiding the correct version of how the little girl met her death.

In our law no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the court is not at liberty to convict unless satisfied, not only that the explanation is improbable but that beyond any reasonable doubt it is false. See R v Difford 1937 AD 370…,.; R v M 1946 AD 1023…,.; S v Pisirayi HB121-16.

The explanation given by the accused about how the deceased died, including his belated claim that her head was stuck on a protruding metal of a tripod stand, which he only remembered in court, fits the description given by McNALLY JA in Matambo v Mutsago 1996 (1) ZLR 101 (S)…, that:

“However charmingly, smoothly or impressively Mr Mutsago made these statements, the fact is that they are mechanically impossible. If a witness says he saw water flowing uphill unaided by a pump, you do not judge his veracity by reference to his demeanor. You apply the law of physics.”

Which then brings us to the issue of circumstantial evidence.

There is no direct evidence of the killing of the deceased. The prosecution is anchored on circumstantial evidence. In our law, the guiding principle is that circumstantial evidence depends upon facts which are proved by direct evidence from which the court is required to draw inferences. Means, motive and opportunity are all examples of circumstantial evidence.

To show that the accused person had the means, a motive, and the opportunity assists in persuading the court of his guilt and raises a prima facie case against him for him to answer. However, where the conviction of the accused is dependent upon circumstantial evidence, the inference sought to be drawn must be consistent with the proved facts and the facts should be such that they exclude every reasonable inference from them except that which is sought to be drawn. See S v Gwebu HB124-16; S v Edwards 1949 SR 30; R v Blom 1939 AD 188…,.; S v Vhera 2003 (1) ZLR 668 (H)…,.; S v Phiri HB19-16.

The proved facts are that the accused had custody of the deceased on the day in question in the absence of the child's mother. He had in his possession an axe he had used earlier while chopping wood as admitted by himself and as observed by Albert Ndlovu. He was observed by Phineas George Ndlovu putting on bloodstained clothes which he later took off and says he washed together with those of the deceased - a very unusual activity for a rural man who was expecting the return of his wife from her trip that very same day.

He is the one who solely “discovered” the body of the deceased and tampered with a crime scene under cover of the night hours before alerting neighbours and calling the police. The deceased was found with fatal wounds which, according to the medical evidence, were inflicted by an instrument like an axe. The conduct of the accused, of washing his clothes and those of the deceased, when viewed together with that of interfering with the crime scene, removing the body of the deceased and covering it with a blanket before people arrived, is consistent with a guilty person setting about to destroy evidence.

It also explains why no blood was found at the scene, if one may assume that the deceased met her death at that kitchen hut. She may have been planted there, for all we know, after being killed elsewhere. We also cannot ignore the missing forearm which may constitute the final missing link of the jig-saw puzzle - the motive to kill the girl. We take judicial notice that quite often in contemporary history strange killings for ritual purposes have been occurring in this country and the killing of the 5 year old girl may have been one of them.

We conclude, therefore, that the accused person had the means and the opportunity to kill the deceased the way she was killed. As pointed out, the missing forearm also provides the motive. Accordingly, on the proved facts, we have no hesitation in finding that the only inference to be drawn is that the accused did kill the deceased and probably used the liquor that he says he continued consuming slowly, even from his bedroom, as the source of dutch courage for the commission of the heinous crime.

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

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