The
accused pleaded not guilty to the charge of contravening section
47(1) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23]
which relates to murder.
The
charge is that on 12 October 2001, at Katira homestead, Mashambanhaka
Village, Chief Nyajina in Uzumba communal lands, the accused, with
intent to kill or realising there was a real risk or possibility that
his conduct may cause death, murdered one Sinoia Katema by assaulting
him all over the body using open hands, booted feet and wooden sticks
causing injuries resulting in his death.
The
now deceased was the biological father of the accused. He was about
60 years old. The now deceased was estranged from his wife, Maruda
Chisahwira, who is also the accused's mother. The now deceased
stayed alone at the matrimonial home and his wife was staying nearby
at the homestead of one of their sons. The accused had his own
homestead.
As
per Annexure A, the summary of facts, it is alleged that the accused,
on 12 October 2001, visited the now deceased at his homestead at
about 2300 hours. The accused started to accuse the now deceased that
he was allowing some evil spirits to affect the family. A quarrel
ensued. The accused is alleged to have proceeded to assault the now
deceased with open hands, booted feet and sticks throughout the night
until the early hours of 13 October 2001 when the now deceased was
unconscious. It is alleged that the assault took place in the
presence of the now deceased's wife, Maruda Chisahwira, who is also
the accused's mother. It is further alleged that Maruda Chisahiwra
was unable to assist the now deceased and that no other person came
to restrain the accused. The accused was arrested in the morning on
13 October 2001. The now deceased died in hospital in Harare eight
(8) days later, on 22 October 2001, from the injuries inflicted
during the assault.
In
his Defence Outline, Annexure B, the accused said on the day in
question he and the now deceased visited a faith healer to consult
and get help on family that affected the accused after which they
returned home, each going his separate way. The accused said he
proceeded to church and at about 0200 hours the now deceased summoned
him to his homestead. On arrival, the accused said he noticed the now
deceased was drunk and the accused decided to engage him in the
presence of his wife and the accused's mother, Maruda Chisahwira,
whom he fetched from his brother's homestead. The accused said
while inside the now deceased's hut, in the presence of Maruda
Chisahwara, a quarrel ensued. The accused said the now deceased
picked an axe intending to attack the accused but the accused managed
to wrestle it away and threw it out of the kitchen hut. Unperturbed,
the accused said the now deceased took a spear with the intention of
attacking the accused but the accused managed to dispossess the now
deceased of the spear which spear the accused broke into two and
threw the blade out of the kitchen hut. The accused said the now
deceased went out of the kitchen hut to pick the axe and spear blade
and the accused followed him. The accused said as the now deceased
tried to pick up the axe on the ground the accused hit the now
deceased on his back with a spear handle which had remained in the
accused's hands. The accused said he proceeded to kick the now
deceased with booted feet, twice, that is once on the ribs and once
on the chest. The now deceased could not pick the axe and remarked
that the accused had hurt him. The accused said the now deceased
appeared unconscious but woke up unaided telling the accused he was
feeling cold. The accused said he made a fire to warm the now
deceased and spent the whole night with him. The next morning, the
accused said his mother was unable to cook porridge for the now
deceased as there was no mealie meal and he decided to go with his
mother to a certain home in the village to get some maize. The
accused said on his way back members of the neighbourhood watch
committee then arrested him.
The
accused stated that he had no intention to kill the now deceased and
that he did not realize that his actions would result in the
deceased's death. The accused pointed out that he had no
pre-meditated notion
of assaulting, let alone killing the now deceased. The accused said
he acted in self-defence when the now deceased, who was drunk,
decided to attack him, unprovoked, with an axe and spear. The accused
said when he kicked the now deceased once on the chest and twice on
the ribs he merely wanted to prevent him from picking up the axe
hence acted at the spur of the moment and in self defence. The
accused denied that he assaulted the now deceased throughout the
night alleging that the injuries stated in the post mortem report are
consistent with the accused's version of events….,.
In
support of this case, the State relied on the evidence of Maruda
Chisahwira, who is the now deceased's wife and the accused's
mother, Phillimon Makuku, a neighbour to the now deceased, and the
investigating officer, Assistant Inspector Andrew Makovera.
Exhibit
1 the post-mortem report and exhibit 2, the accused's confirmed
warned and cautioned statement, were produced by consent.
The
cause of the now deceased's death is not in issue. As per exhibit
1, the postmortem report, the deceased died from chest injuries which
included bruises and rib cage fractures and lungs contusion all
arising from the assault. The now deceased's remains were examined
at Harare Central Hospital on 29 October 2001 by a pathologist Dr S A
Mapunda. The following observations and findings were made:
(i)
The now deceased was 60 years old and ill-nourished.
(ii)
Surface wounds or injuries noted was the deformed rib cage with the
crepitation of broken ribs bilaterally involving lower cage of the
body i.e sound made by broken ribs.
(iii)
Cynorosis of the body - which relates a condition in which the skin
and mucous membrane take a bluish colour due to lack of enough oxygen
in the blood.
(iv)
Oedema or congestion of the brain - swelling or excess fluids.
(v)
Injury on the right lung - there was bilateral fracture of the 7th,
8th
and 9th
ribs with contusion (bruises) of the lung which was oedematous,
achymotic and congested.
(vi)
The cause of death is due to be chest injuries, i.e bruises, and rib
fractures and lungs contusion.
It
is not in dispute that the now deceased died from the injuries
inflicted by the accused during the assault. There is therefore a
nexus or causal link between the assault perpetrated by the accused
and the now deceased's death.
It
can be inferred from the nature of the injuries inflicted that the
assault was not only very serious
but
clearly fatal. A lot of force was used as the now deceased's three
(3) ribs were broken and lungs damaged. The now deceased, who had
hitherto been in fairly good health, could not recover from the
assault. It is therefore clearly misplaced for counsel for the
accused to submit the assault was a minor one and that no serious
injuries were inflicted. This flies in the face of the clear findings
outlined in the post mortem report - which findings are not disputed.
The
narrow issue which falls for determination in this case relates to
the circumstances under which the accused assaulted the now deceased
and whether the defence of self-defence is available to the accused.
The
evidence of both Philemon Makuku and Assistant Inspector Andrew
Makovera is not helpful in this regard. Briefly, it can be summed up
as follows;
Philemon
Makuku, a next door neighbour to the now deceased disputed what is
said in both the summary of evidence and his statement to the police,
which is that he heard the commotion or noise at of the now
deceased's homestead on this night in question and that the next
morning he found the now deceased lying down. Instead, he said he did
not hear anything on the night in question as he was tired and fell
asleep. He said the next morning, on 13 October 2001, at about
0600hrs, he passed through the now deceased's yard and was shocked
to see the now deceased seated by the hut with legs stretched, head
bowed down and arms on his legs. He noted the accused and Maruda
Chisahwira were seated close by. He said he noticed that the now
deceased was injured as he was bleeding from the mouth. This prompted
him to ask the accused what he had done to the now deceased and the
accused confirmed to him that he, the accused, had assaulted the now
deceased. Philemon Makuku said he did not involve himself in the
matter or tried to assist the now deceased as he was rushing for a
funeral and was also afraid the accused could assault him. All in all
he said the now deceased was in a
bad state as he failed to raise up his head to look at him or to talk
to him. He said the situation was terrifying as the accused and
Maruda Chisahwira just seated there doing nothing.
Our
assessment of Philemon Makuku is that he was a cagey witness who
clearly was un-interested in assisting the court if that would give
the impression of him involving himself in the affairs of the now
deceased's family. He was not willing to answer simple questions or
to explain inconsistencies between his statements and viva voce
evidence. The impression we get is that he was rather an unwilling
and dis-interested witness. However, the value of his evidence is
that the now deceased had been seriously injured when he saw him in
the morning on 13 October 2001.
Assistant
Inspector Andrew Makovera told the court that in the morning on 13
October 2001, at Mashambanhaka Business Centre, a member of the
neighbourhood watch committee handed over to him the accused who was
under arrest, and the now deceased who was badly injured and lying
helpless in a wheel barrow.
He told the court how the now deceased could not talk, was clearly in
agony and was bleeding from both the nose and the mouth. The accused
confirmed to him that he assaulted the now deceased. Assistant
Inspector Andrew Makovera said two sticks allegedly used in the
assault were handed over to him by the neighbourhood watch committee
members and taken as exhibits. He was unable to produce them as they
could not be located at the High Court (may be because this is an old
case). He however described them as follows;
(i)
A thin switch from a mulberry tree about 80cm long.
(ii)
A thick stick or log about 1 metre long and as thick as his forearm.
He
said there was no axe or spear surrendered to him and the accused
never mentioned to him those items. His evidence is unchallenged and
we have no cause not to accept it.
The
key witness in this matter is the now deceased's wife and the
accused's mother, Maruda Chisahwira. She is now a very old woman
who could not testify while standing. She also revealed that she has
a very poor sight - even prior to the incident in 2001.
Maruda
Chisahwira (Maruda) told the court that at the material time she was
estranged from the now deceased as she was staying at one of her
son's homestead and the now deceased was staying alone at the
matrimonial home.
Maruda
explained that she did not enjoy good relations with the accused or
the now deceased. She said both the now deceased and the accused were
addicted to gambling and would gamble away all the little property
she worked for. In relation to the accused, she said the accused had
previously burnt one of her huts (accused confirmed this and that he
was sentenced to 10 months imprisonment for arson).
Generally,
she said, the accused, despite being her son, always insulted,
disobeyed and disrespected her.
In
relation to the now deceased, she said she was enstranged from the
now deceased whom she described as irresponsible; addicted to
gambling; drunkard; and of violent disposition. She said the now
deceased would gamble away any household goods; was quarrelsome;
always engaging in brawls at beer drinks. At one point she said the
now deceased assaulted her with an axe on the head and she showed the
court a healed scar on her front part of the head towards the
forehead. She described the now deceased as an irresponsible and
abusive husband.
Turning
to the events of the day in question, she said it was late at night
when the accused came and knocked at her hut and came in and
indicated that he would not leave her hut if she did not accede to
his demands. She realized the accused was adamant and she decided to
seek refuge at the now deceased's home. Instead, the accused chased
after her until they got to the now deceased's home. On arrival,
she alerted the now deceased of the accused's presence and the
deceased came out of his hut.
The
accused, in his evidence, admitted that he had to force Maruda
Chisahwira to go to the now deceased's homestead.
It
is clear from Maruda's evidence that when the accused and Maruda
arrived the now deceased had retired to bed and had to be alerted of
the presence of the accused and Maruda. This contradicts the
accused's version that it is the now deceased who had caused this
gathering.
Maruda
Chisahwira said when the now deceased came out of his hut the accused
immediately confronted him asking him if he, the now deceased, had
done what was required of him as had been advised by the prophets.
Maruda said she was not privy to this as it was only the accused and
the now deceased who had consulted the prophets. She said the now
deceased replied that he had not been able to do so and the accused
asked why. The now deceased explained that he was having financial
constraints.
Maruda
said this incensed the accused who started to assault the now
deceased. She said the accused first used his hands but because of
her poor eye sight she said she could not tell if it was open hands
or clenched fists. Thereafter, she said the accused would take
switches from the nearby mulberry tree and continued to assault the
now deceased. She said the assault was prolonged as the accused would
rest and resume the assault.
Maruda
Chisahwira said at no point did the now deceased fight back but
remained seated. She said the accused was very violent, shouting; and
when she tried to admonish him, the accused threatened to also
assault her. Maruda said her attempts to leave or run away were
foiled by the accused who threatened her and stood guard all night
declaring that no one would leave the homestead. Maruda said this
went on until dawn when she left on the pretext of taking a
grandchild to the bus stop. She said the accused still followed her
and members of the Neighbourhood Watch Committee, who had been
alerted, arrived and arrested the accused.
As
regards the state of the now deceased after the assault, she said at
one point he was lying face down and she noted that he was bleeding
from the nose and the mouth. She described the assault as severe and
prolonged. Maruda Chisahwira said the sticks the accused used were
recovered and she saw a thin switch and the other as thick as her
forearm. She denied that there was a fight but that the accused just
assaulted the now deceased.
Maruda
Chisahwira was subjected to very lengthy cross examination dealing
with her relations with accused, the extent of her poor eyesight and
the nature of the assault. In our view, she acquitted herself well as
she was able to answer all the questions clearly and satisfactorily.
She
was asked why she did not leave and seek help that night. In
response, she said the accused prevented her; ordering her to sit
down and stay put or risk being assaulted too. She denied that the
accused came to fetch her to go to the now deceased's home but that
she got there fleeing from the accused. On what prompted the assault,
she reiterated that it is the accused who confronted the now deceased
as he came out of the hut asking if the now deceased had rectified
their issue and that the now deceased's response, that he had
financial challenges, invited the assault. She denied that there was
a fight or that the now deceased tried to attack the accused. When it
was put to her that the now deceased had an axe which he tried to use
she was visibly surprised, retorting:-
“An
axe, from where? There was no axe.”
Maruda
Chisahwira was taken to task about her relations with the accused and
whether this did not influence her to falsely incriminate the
accused. She did not hide her disappointment with the accused whom
she said did not accept her reprimand as a mother and always
disrespected her saying she was an outsider in the family. She also
insisted that she had every reason to cause the accused's arrest
after he burnt her huts and refused to withdraw the charges. She said
the accused, for a long time, had not respected her as his mother and
that there was nothing she could do about it.
Maruda
denied that this caused her to lie against the accused about the
assault.
She
insisted that on the day in question the accused was the aggressor
and that the now deceased came out of his hut un-armed. She said she
never saw an axe or spear but the sticks the accused used to assault
the now deceased. She flatly denied that the accused acted in
self-defence. Instead, she said it is the now deceased who pleaded
for mercy asking to discuss the matter rather than being assaulted.
Maruda said while she may have had problems with the accused, her
son, she nonetheless told the court the truth of what happened.
Our
analysis of Maruda
Chisahwira's
evidence is that she gave a simple coherent and straight forward
account of her relations with both the accused and the now deceased
and also the events of the night in question. Despite her advanced
age she admirably withstood the lengthy cross-examination and was
alert.
Our
impression of Maruda is that she is an old long suffering woman who
was abused by both the now deceased husband and the disrespectful son
being the accused. That was very clear in her demeanour but did not
distract her from being truthful to the court. Her recollection of
the events of the night in question, after 13 years, and at her age,
is amazing. It was clear that this incident traumatized
her and should have remained etched in her mind.
Our
assessment of Maruda
Chisahwira is
that she was a fair and balanced witness. She was candid with the
court about her bad relations with both the accused and the now
deceased and did not seek to minimise or exaggerate the vices of
either of the two - especially their violent conduct.
In
our view, she properly conceded that she suffers from poor eye sight,
and, in her testimony, she limited herself to what she clearly saw
indicating that she was compromised by both the darkness and the poor
eyesight. We are not persuaded that we should disregard her evidence
on account of her poor eye-sight. The fact of the matter is that she
was not blind but had or has poor eye sight.
We
are satisfied that Maruda
Chisahwira was
able to meaningfully, and without contradictions, explain how the
accused assaulted the now deceased; who the aggressor was and why;
what was used to assault the now deceased; and the injuries she noted
on the now deceased, that is the bleeding from the nose and mouth. We
find her to be an impressive and credible witness.
Maruda
Chisahwira's
evidence on what happened on the night in question finds
corroboration from the accused's confirmed warned and cautioned
statement…,. This is what the accused said:-
“I
admit the charge of murdering Sinoia Katema after I had assaulted him
with a switch, then with fists and kicking. I assaulted Sinoia Katema
who was my father after he had refused to perform some traditional
rituals in order to have me cured from the problems which I was
facing customarily. On the day I killed him we had come back from
some apostolic sect church where we had gone to consult some prophets
there, where we were told of what was troubling me customarily. My
father refused to perform rituals to solve my problems then I
assaulted him and this caused his death.”
It
is clear from this statement that the accused confirms that he was
the aggressor and explained how and why he assaulted the now
deceased. This dovetails with the evidence of Maruda
Chisahwira.
It's clear from this statement that the accused was not acting in
self-defence as he now alleged.
There
is no mention of any possession of or attempted use of an axe or a
spear by the now deceased in that statement. In the statement, the
accused admitted assaulting the now deceased by using switches, fists
and booted feet.
In
his defence case, the accused was unable to reconcile his Defence
Outline and the confirmed warned and caution statement. It became
clear to us that the new version narrated by the accused in his
defence outline and evidence was an after-thought. On that basis we
reject the accused's evidence.
In
his evidence, the accused confirmed that he believed that the now
deceased was responsible for his misfortunes and also unwilling to
help him. The accused said the now deceased had not taken care of his
own mother (the accused's grandmother) and had not even attended
her funeral hence her spirit was haunting the accused. The accused
said the now deceased was unwilling to perform rituals to appease his
mother's spirit. This explains why the accused assaulted him.
The
accused's evidence on how the assault took place is not only poorly
thought out but inconsistent. As already said, there is no mention in
his warned and cautioned statement that the now deceased was armed
with a spear and axe or that the accused acted in self-defence as he
later frantically tried to portray himself. This explains why Maruda
Chisahwira and
the police did not recover any axe or spear and neither did the
accused surrender or mention those items to the police.
In
his evidence, the accused downplayed how he said he assaulted the now
deceased.
The
State case is that the accused used open hands, booted feet and
wooden sticks all over the body. In his Defence
Outline,
the accused said he first hit the now deceased once with a spear
handle on the back and that thereafter he kicked him twice, that is
once on the ribs and once on the chest.
In
his evidence in chief the accused changed his version.
He
said he first kicked the now deceased once on the ribs causing the
now deceased to kneel down and thereafter hitting him twice on the
back with a broken spear handle after which Maruda
Chisahwira told
him to stop and that he complied and did not proceed to pluck a
switch from the malberry tree as he had intended. He denied
assaulting the now deceased on the chest. This differs from the
warned and cautioned statement in which he said he assaulted the now
deceased with clenched fists, by kicking him and also used switches
or switch. Again, the accused was unable to reconcile these versions
on how exactly he assaulted the now deceased. The reason is that he
is not being truthful.
The
accused said at the time he kicked the now deceased in the ribs the
deceased cried out that he had been injured. The accused did not help
him at all. He did not call for help from neighbours but decided to
spend the night with the badly injured deceased outside in the cold
until dawn. Even the next day the accused did not seek any help when
the now deceased was bleeding from the nose and the mouth and could
not talk. The accused offers no explanation for that conduct. We are
inclined to accept Maruda
Chisahwira's
evidence that the accused ensured that the now deceased did not
receive any help….,.
The
next question to consider is whether the accused, when he assaulted
the now deceased, he desired death or death was his aim or object
which relates to actual intention OR he did realize that there was a
real risk or possibility that his conduct may cause death but
nonetheless continued to engage in that conduct despite the risk or
possibility of death.
Put
differently, the question is that the accused may not have desired to
bring about death.
Put
differently, the quiz is that the accused may not have desired to
bring about death but did foresee it as a possibility when he
assaulted the now deceased and was reckless as to whether death
ensued.
Did
he have the subjective foresight as to the possibility of death but
nonetheless exhibited recklessness?
See
S
v Mungwanda
2002 (1) ZLR 574 (S)…,. - this relates to
legal intention or constructive intent.
Our
finding is that the accused did not desire death and neither was his
aim or object to cause death. The evidence shows that the accused
wanted to simply assault the now deceased as a punishment for
refusing to perform the ritual the accused wanted. He therefore
lacked the actual intention to commit murder.
We
are however satisfied that the accused did foresee the possibility
that whilst he assaulted the now deceased in the manner he did death
may result but was reckless as to whether it resulted or not. This
can be inferred from the manner of the assault, the injuries
inflicted, and the accused's conduct after the assault.
It
is our finding that the accused assaulted a 60 year old man who was
defenceless. The accused used his open hands or fists, booted feet,
switches or sticks. It is clear the assault was over a prolonged
period of time. A lot of force was used as the accused broke the now
deceased's rib cage - that is three ribs. The now deceased's
lungs were damaged. The now deceased bled internally with blood
coming from the nose and mouth. The accused did not care to offer any
help or call for help, but, instead, kept the now deceased and Maruda
Chisahwira prisoners overnight. We therefore have no difficulty in
finding that the accused, when he assaulted the now deceased,
realised that there was a real risk or possibility that such an
assault may cause death but continued to engage in that conduct;
attacking the chest and the ribs despite the risk or the possibility.
Accordingly,
we find the accused guilty of murder as defined in section 47(1)(b)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
VERDICT:
Guilty of murder as defined in section 47(1)(b) of the Criminal Code
[Chapter
9:23].
