BERE J: It was a tragic end to the deceased's life. She was
barely 23 years at the time of her death. The accused stands charged
with the crime of deceased's murder to which he has offered a plea
of innocence.
The material facts constituting this matter which are common cause
are as follows:
The accused and the deceased were a young couple with one minor
child aged three years at the time. Their relationship was on the
rocks and for some time they had experienced what could be referred
colloquially be referred as an “on and off” relationship. Their
matrimonial discord had spilled over to the deceased's family and
from the look of it they appear to have failed to successfully assist
the two. This then led the deceased to take refuge at her sister's
place. On 10th of September 2015 the accused walked the
deceased from the flea market where the deceased was working to her
sister's place of residence. Incidentally the deceased's sister
had left for Harare on a private visit. There the deceased was seen
doing laundry whilst the accused was helping himself to two
two-litres of opaque beer whilst their little boy was playing close
by. This was around 18:00 hours. The next thing of significance was
that the deceased was heard by neighbours screaming for assistance.
Three neighbours rushed to the place in response to this distress
call. After struggling to push open the kitchen door from where the
distress call was emanating from three state witnesses found the
accused busy assaulting the deceased who was down and screaming in
agony. No sooner had the witnesses rescued the deceased and held the
accused to restrain him from further punishing the deceased did the
deceased draw the attention of the witnesses to the murder weapon, a
kitchen knife that was sunk deep in her back close to her shoulder
pleading with the witnesses to pull it out. The deceased's clothes
were found to be soaked in blood. Like typical good Samaritans the
three witnesses quickly arranged for the deceased to be conveyed to
Hwange Hospital for treatment whilst seeking police assistance to
unravel the cause of this tragic assault. As fate would have it the
deceased died on the same evening on admission at Hwange Hospital.
Whilst the state alleged that the accused had deliberately and
intentionally assaulted the deceased to death the accused pleaded
innocence and said it was the deceased who had conducted herself in
an aggressive manner and armed herself with the murder weapon after
the two had picked up a quarrel over a love message that had appeared
on the deceased's cellphone.
The evidence surrounding the origins of the dispute is privy to the
accused only and the court will give the benefit to the accused. The
accused person went further to raise the defence of self defence.
In terms of our codified law as informed by section 2531
thereof this defence can be a complete defence leading to the
acquittal of the accused if successfully pleaded and its requirements
can be summarised as follows: there must have been an unlawful attack
on the accused person, the attack must have either commenced or
perceived to be imminent by the accused. In response thereto the
action taken by the accused must have been necessary to avert the
attack and the means used to avert that attack must have been
reasonable given the circumstances of the case. See also A Guide
to the Criminal law of Zimbabwe.2
In order to ascertain whether or not the defence of self defence is
sustainable the court is enjoined “to take due account of the
circumstances in which the accused found himself/herself including
any knowledge or capability he or she may have had and any stress or
fear that may have been operating in all the circumstances.3
It is with this in mind that we must now proceed to analyse the
evidence that was presented in this court by both the state and the
defence.
The state case was built around the evidence of Weston Chemhere,
Moses Sanudi, Sarah Phiri, Rachel Luphahla, Dumisani Mwindi and
Doctor Roberto Trecu. The defence case was limited to the viva
voce evidence by the accused person.
The evidence of Sarah Phiri, Dumisani Mwindi and Doctor Roberto
Trecu was admitted into the court record as recorded in the state
summary in terms of section 314 of the Criminal Procedure and
Evidence Act4 and so was the murder weapon, exhibit 3.
The evidence of Weston Chemhere, Moses Sanudi and Rachel Luphahla was
given in court and was tested through cross-examination.
The evidence of the two state witnesses Weston Chemhere and Moses
Sanudi, was particularly critical in this case because it placed this
court at the scene of the crime. Both witnesses testified that when
they responded to the distress call by the deceased they had to force
open the door and that they were shocked with what they saw. The two
saw the accused viciously assaulting his wife, the deceased who was
down and helpless. They were further shocked to discover upon
indication by the deceased that the murder weapon was still sunk in
her body and that she was bleeding profusely as evidenced by her
clothes which were soaked in blood.
It is clear that the accused could not possibly have been assaulting
the hapless deceased in self-defence in those circumstances.
It is not accidental that the accused did not disclose to the three
rescuers of the deceased that it was him who was under threat. A
person under threat or attack does not continue to attack an
overpowered woman who is down and helpless. The action of the
accused as observed by the three witnesses speaks volumes to his
aggression towards the deceased. Even if one were to assume the
deceased was initially the aggressor, what is clear is that the
accused clearly exceeded the bounds of self-defence.
The accused's explanation that he was assaulting the deceased
because she was biting her feet does not add up given the state of
the deceased as observed by the three state witnesses. It is not
usual that credibility of state witnesses is confirmed by an accused
person. This is one such rare case. We accept the version of the
state witnesses as having projected nothing else but the truth. A
further leaf to their credibility is the witnesses' unwillingness
to be drawn to comment on what may have started the fight. They
simply pleaded ignorance of that.
The accused did not project himself as an honesty or credible
witness basically from three fronts. His averment that the brawl
with the deceased started outside the house cannot possibly be true
given the evidence of the three witnesses who gave evidence in court.
It is clear that if the fight had started outside the house these
witnesses would have been privy to it.
Secondly and more importantly is the accused's averment that all
the injuries caused on the deceased were accidentally caused by the
knife as the two were tussling for the possession of that knife.
This would not make sense given the various points on the deceased's
body which came under attack and the depth of those wounds as
described by the post mortem report – exhibit 2.
It further weakness the accused's story that of all the injuries
that he purports to have sustained from the deceased, none were seen
by the state witnesses and further that he was never treated for such
wounds. If there were any such injuries, the police in their wisdom
could not have failed to note them and facilitated his treatment.
Having accepted the evidence of the state witnesses as representing
the truth in this matter, the court must now proceed to consider the
appropriate verdict.
The prosecution initially pushed for the verdict of murder with
actual intent and we expressed our reservations for that verdict.
Our reservations stemmed from the fact that as a court we remain
clueless as to how the assault of the deceased started. Our view is
that it is possible the deceased may have been the initial aggressor
as suggested by the accused. We are not able to completely reject
that position in its entirety.
Having given the accused the benefit of doubt on this point we
accept that whatever happened initially there is overwhelming
evidence that the accused went over-bounds in defending himself and
in doing so we find comfort in leaning on the evidence of the two
state witnesses who testified.
We are also of the view that if indeed the accused had the actual
intent to kill the deceased, there was nothing to stop him from
pulling the knife and continue to stab her as she lay down helpless
and screaming. Our reading of the evidence is that by stabbing the
deceased on various parts of her body, and continuing to assault her
knowing fully well that she had the murder weapon in her body, the
accused must have subjectively foresaw the real possibility that he
would fatally injure the deceased and he was reckless as to whether
or not that occurred.
The proper verdict must therefore be murder with constructive
intent. Consequently the accused is found of having committed the
crime of murder with constructive intent.
Sentence
In considering what we perceive to be an appropriate sentence in
this case we will be guided by the following factors.
In mitigation of the sentence we do accept that this murder was not
committed in aggravating circumstances as anticipated by section 48
of our Constitution.
The accused had partaken of alcohol and this must have affected his
power of perception.
The accused, despite being 32 years old, he still remains a young
offender who appears to have been overwhelmed by the situation he
found himself in. He appeared to love the deceased but unfortunately
for him it would seem that the deceased no longer loved him if we are
to accept the evidence of Rachel Luphahla, the deceased's elder
sister. We are satisfied that the accused was driven by passion in
committing this offence.
The accused has family responsibilities, particularly the 4 year old
boy who must now grow up with one parent. Throughout the
proceedings, the accused struck us as someone who was regretting his
actions and to that extent we accept that he is remorseful.
In aggravation, we are extremely concerned with offences of domestic
violence. Our people must be slow to resort to violence in order to
resolve their matrimonial challenges.
The deceased died a painful death given the nature of the stabbing
as per the post mortem report. This was a callous and brutal murder
done right in front of a crying 3 year old son. We have no doubt
that the little boy was subjected to psychological torture by the
conduct of the accused person.
A young life was unnecessarily lost, and that life can never be
reclaimed again. The sad thing about death is that it has some
permanency. Once lost, life cannot be reclaimed.
I am aware of the case referred to me by counsel, the case of S v
Dzaro but I believe that case is distinguishable. The case
occurred in 1996 and during that time we had not as a country
experienced an upsurge in many cases associated with domestic
violence compared to our present day Zimbabwe.
Secondly, in that case the court was dealing with a young female
offender who was barely 19 years old who had been kept in custody for
a considerable length of time before the matter was concluded.
In dealing with that case the court was aware of the fact that in
this country there are very few women recidivists or repeat
offenders.
In the instant case we are dealing with a more mature individual as
compared to the situation in Dzaro.
Whenever death occurs as courts we have an obligation to constantly
remind our people of the need to respect life, there is no better way
of conveying the message than by imposing deterrent sentences. Our
messages must go loud, clear that killing a fellow human being has
serious consequences and that these courts frown at such offences.
We sincerely hope that the sentence we will impose in this case will
enable the accused to have time to reflect on this case and move
towards personal reformation so that he can once more be a more
useful and constructive member of soceity.
Sentence: 25 years imprisonment
The Prosecutor General's Office, state's legal
practitioners
Marondedze, Mukuku & Partners, accused's legal
practitioners
1. Criminal Law (Codification and Reform) Act [Chapter 9:23] (the
Code)
2. A Guide to the Criminal
Law of Zimbabwe by G. Feltoe second edition published by Legal
Resource Centre in 1997 at p 45
3. Section 253 (2) of the Code
(supra)
4. Chapter 9:07
