The
accused, aged 28 years, is facing a charge of murder.
The
allegation being that on 24 November 2014, and at Chabukhowa Village,
Chief Pashu, Binga, the accused unlawfully and intentionally killed
Peter Mudimba by striking him on the back of the head and above the
left ear using an axe. The accused pleaded not guilty to the charge
of murder and tendered a limited plea to the lessor charge of
culpable homicide.
The
State rejected the limited plea and the matter proceeded to trial.
The
State case was fairly straight forward and most of the issues were
not disputed and are common cause. The State opened its case by
tendering a State Outline (Exhibit 1). It shall not be necessary to
repeat the entire contents of the summary of the State case which now
forms part of the record. The Defence Outline was read into the
record and marked Exhibit 2. The accused's Defence Outline is set
in the following terms:
“At
the trial of this matter, the accused will plead not guilty to
contravening section 47 of the Criminal Law (Codification and Reform)
Act [Chapter
9:23],
murder, leveled against him but guilty to culpable homicide and will
state the following in his defence:
1.
That his wife had spent seven days away from home and that she had
left a 2 year old baby behind and he had no idea as to where his wife
was.
2.
That, sometime in September 2014, he had caught his wife red-handed
having sexual intercourse with one Enock Muleya in their matrimonial
hut and matter was yet to be resolved.
3.
That he suspected his wife was unfaithfully and having an affair with
the now deceased.
4.
That he was having a domestic dispute with his wife for a period of
about five months prior to the fateful day.
5.
That he was overcome by anger and emotions due to cumulative domestic
disputes with his wife and suspected that his wife was having an
affair with the now deceased.
6.
That he did not intend to kill the deceased but acted in a fit of
rage.
Wherefore,
accused will pray for his acquittal on the charge of murder but be
found guilty of culpable homicide.”
The
next documentary evidence is the accused's warned and cautioned
statement (Exhibit 3). It is necessary to set out the contents of
this statement which was recorded at Hwange on 8 December 2014. The
statement is in the following terms;
“I
admit to the charge of killing Peter Mudimba. It was on 24 November
2014 at my own homestead, Chabukhowa Village, Chief Pashu inside my
bedroom hut. I struck him first on the back of the head and he fell
onto the ground and I got out of the hut. I returned back in the hut
and found him having difficulties in breathing and struck him again
with an axe above the left ear and he died. The reason of killing the
deceased is that Samukeliswe Mpofu, my wife, advised me that she had
consensual sexual intercourse with her once with him on the way. I
then hid the axe at the side of the homestead next to “Mqokolo”
tree after wiping off the blood.”
The
accused's warned and cautioned statement was confirmed by a
magistrate. The State then tendered an affidavit by Edson Chikunguru,
a Constable in the Zimbabwe Republic Police confirming that he had
collected the body of the deceased from the murder scene to United
Bulawayo Hospitals (Exhibit 4). A post mortem report (Exhibit 5),
prepared by Dr Sanganai Pesanai, details the cause of death as:
(a)
Brain damage.
(b)
Multiple skull fractures.
(c)
Chop wounds.
(d)
Homicide.
On
further marks of violence, the post-mortem report reflects that there
was a chop wound on the left temporal region oozing brain matter
(8x2cm) and a chop wound on the right occipital region (8x1cm).
The
last exhibit was the murder weapon, the axe (Exhibit 6).
The
State led oral evidence from its first witness, Siyamukelisiwe Mpofu.
She testified that the accused was her customary law husband,
although no lobola had been paid to her parents. They started living
together around March 2014. She is only aged 20 years. She met the
accused at Nkayi. After they fell in love they moved to Binga where
they stayed with the accused's step-father for a period of four
months before they left to establish their own rural home in the same
area. The witness told the court that their relationship ran into
problems as soon as they left the accused's step-father's home to
live on their own. She testified that their first problem was that
the accused was married to another woman. The witness referred to her
as the senior wife. The senior wife, Sithengisiwe Sibanda, left the
accused as soon as the witness set up their home. The relationship
suffered further problems as the accused constantly accused the
witness of admiring other men. The situation was so bad that the
accused would follow the witness wherever she went. The witness said
the accused forced her to admit that she was attracted to other men.
The parties' relationship was not peaceful to the extent that the
witness would constantly leave the matrimonial home to seek refuge
with the accused's relatives. It was the witness' evidence that
she was subjected to beatings regularly. She was accused of having an
affair with a number of men in the area. She was accused of having
boyfriends at Kamativi Police. She was accused of having been in a
relationship with one Enock Muleya. She was accused of having a fling
with several other men - including her father-in-law, Jacob Mudenda.
A
few days before the fateful day the witness was assaulted by the
accused. At first she decided to flee to her father in law's
homestead, but, on second thoughts, she decided to go and report the
matter at Kamativi. She spent three days at the police station before
a neighbourhood watch committee member (the deceased) was assigned to
attend to the matter. The deceased was instructed to go to the
Chief's place where he would obtain a letter summoning the accused
to attend at the Chief's court. The witness left Kamativi in the
company of the deceased and spent another night at the Chief's
place before proceeding to her homestead. On the way, she met with
the accused person who indicated that he was on his way to to report
her absence from home at the Chief's court. The deceased informed
the accused that he was actually on assignment to attend to their
domestic dispute and that he intended to have a discussion with his
father-in-law before they returned to the Chief's court. The
accused, the deceased and the witness proceeded to see the accused's
father in law. Upon arrival at Jacob Mudenda's homestead the
deceased explained the nature and purpose of his visit. He indicated
that they would go and collect the witness's clothes from her
homestead and would pass through updating Jacob Mudenda about the
matter.
From
Jacob Mudenda's homestead, the accused, the deceased and the
witness proceeded to the accused's homestead to collect clothing
items for the witness. Once at the homestead, the witness observed
that there was no property at the homestead. The accused informed the
witness that he had hidden all the household goods and clothes in the
bush because he was afraid she would bring the police and take away
all the goods and clothing. The accused advised the witness to carry
the property half way to the homestead and he (the accused) would
carry it the rest of the way. The witness observed that the accused
was not placing the property inside the house but placing it outside.
When all the property had been collected from the bush the accused
confronted the witness holding a kitchen knife. He demanded to have
sexual intercourse with her and she complied because of threats. The
accused indicated that he suspected that she had already had
intercourse with the deceased on the way to his homestead. The
accused then told the witness that the deceased had already gone back
and that he had given him their generator. The witness confirmed that
once they got back to the homestead that the deceased was nowhere in
sight.
The
last time the witness saw the deceased alive was when he was seated
outside their homestead under a tree.
The
witness realized that the bedroom hut was padlocked. Then the accused
instructed the witness that they should leave the place immediately.
They proceeded to Witness Muleya's homestead where they took a
bath, ate some food and then boarded a commuter omnibus. The accused
hinted that they might go to Plumtree but he later said they would go
to Zambia instead. On 25 November 2014 the witness and the accused
arrived at Mlibizi Fishing Camp. Whilst there they were given shelter
by a certain man who lived with his two wives. After a few days at
Mlibizi the accused confessed to the witness that he had killed the
deceased. The accused told the witness that he blamed her for the
death of the deceased because he suspected that she was having sexual
relations with the deceased. The witness then alerted villagers about
the killing, leading to the arrest of the accused….,.
The
next witness for the State was Jacob Mudenda. The accused is his
step-son. He adopted him as his son at the tender age of one year six
months old. He knew the first witness as his daughter in law. He
confirmed, however, that no matrimonial formalities were conducted as
no lobola was paid to the first witness's family. The witness
described the relationship between the accused and the first witness
as being a stormy one. He confirmed that the accused was extremely
jealousy and constantly accused his wife of having affairs with other
men. He testified that the accused was so jealous to the extent that
wherever his wife went he followed her. He went with her to fetch
water. He went with her to the fields and he did not permit her to
converse with other men. She was virtually in captivity. His
daughter-in-law was regularly assaulted and she would seek refuge at
his homestead.
On
24 November 2014, around 3pm, he found the accused, the deceased and
Siyamukelisiwe Mpofu at his homestead. The deceased had a message for
the witness from Chief Pashu. The deceased indicated that he was
going with the accused and his wife to their homestead to collect the
first witness's clothes. The deceased promised to pass through on
this way back and update him on the matter. The witness waited for
the return of the deceased but he did not return. At around 5pm the
witness decided to go and find out whether there had been a problem.
He said that he suspected, that, because of his past violent history,
the accused could have assaulted or harmed the first witness. Jacob
Mudenda told the court when he arrived at the accused's homestead
he realized that the place was deserted. He formed the opinion that
noone had spent any time at the homestead. There was no sign of a
fire having been lit and the bedroom hut was locked. The witness
became suspicious and anxious. He peeped through the window of the
bedroom hut. He was horrified to see the body of the deceased inside
the hut lying on the floor. There was blood on the side of the
deceased's head. There were blood stains on a piece of cloth
covering part of the deceased's body. Jacob Mudenda alerted
villagers about the death of the deceased before proceeding to make a
report at the Chief's place. A report was later made to the
police….,.
The
State made an application to have the evidence of the following
witnesses, as contained in the summary of the State Outline, to be
admitted into the record in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter 9:07], namely:
(a)
Marvellous Dube.
(b)
Kudzai Matombo.
(c)
Dr S. Pesanai.
The
defence acceded to the request by the State and accordingly the
evidence of the aforesaid witnesses was introduced into the record by
way of formal admissions.
The
State closed its case and the defence led evidence from the accused
who gave evidence in support of his defence case.
The
accused gave a very graphic description of how he attacked and killed
the deceased. He gave a clear summary of what happened moments before
the deceased lost his life. In summary, he stated that he had a
struggle with the deceased inside the bedroom hut; the deceased had
kicked him just below the rib cage; he had retaliated in self-defence
and picked up an axe which was lying around; as the deceased turned
his back against him he had struck the deceased at the back of the
head with the axe; he went out of the hut briefly and when he came
back he noticed that the deceased was still alive because he was
uttering some inaudible words; the accused says that he observed that
the deceased, who lay prone on the floor of the bedroom hut, was
attempting to pick a metal pipe; the accused says he delivered the
second blow below the deceased's right ear using the axe; at that
stage, the accused says he concluded that the deceased was dead. He
proceeded to lock the door to the bedroom hut before fleeing the
homestead.
It
is apparent that the manner of killing is not in dispute. What is in
dispute is why the accused committed the murder.
The
accused's testimony is to the effect that prior to 24 November
2014, his marriage with the Siyamukelisiwe Mpofu was a rocky one. The
accused cited, as the main problem, his wife's tendency to be
attracted to other men. The accused told the court that his wife
confessed to him that she had some kind of demonic attraction to
other men - including his own step-father. The accused said that his
wife (first witness) would frequently disappear from the matrimonial
home for several days. He suspected she had affairs with married
police officers based at Kamativi. He said he had caught her having
sexual intercourse with Enock Muleya and that the matter had not been
resolved. The accused mentioned that his wife had told him that the
deceased was the only man who could satisfy her sexually. The accused
spoke at great length about his wife's alleged attraction to
several and many men.
The
accused's defence was mounted on several fronts. These are as
follows:
The
accused stated, in his Defence Outline, that he was overcome by anger
and emotions due to cumulative disputes with his wife and suspected
that his wife was having an affair with the deceased. In his warned
and cautioned statement.., the accused states that the reason he
killed the deceased was that his wife had advised him that she had
consensual
sexual intercourse with the deceased.
The
accused raised a new defence, of self defence, in his
evidence-in-chief. For the very first time the accused suggested that
he had struck the deceased with an axe because he was under imminent
attack from the deceased. He stated, for the very first time, that he
had been kicked by the deceased. The picture that emerges is that the
accused was inventing his defence at every stage of the case.
It
is settled law that the State must prove its case beyond reasonable
doubt. Where the accused person raises a defence, the court should
not reject such defence unless the version cannot reasonably be
possibly true. I shall examine each of the defences proffered by the
accused.
Self
defence
For
this defence to succeed, the accused must show that he was under
imminent attack. He must establish that the action he took to defend
himself was reasonable.
The
accused totally failed to show that he was under any attack. The
defence was clearly an afterthought and a recent creation. We reject
this defence as false. Section 253 of the Criminal Law (Codification
and Reform) Act [Chapter
9:23]
provides as follows:
“(1)
Subject to this Part, the fact that a person accused of a crime was
defending himself or herself or another person against unlawful
attack when he or she did or omitted to do anything which is an
essential element of the crime shall be a complete defence to the
charge if:
(a)
When he or she did or omitted to do the thing, he or she believed, on
reasonable grounds, that the unlawful attack had commenced or was
imminent; and
(b)
He or she 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; and
(c)
The means he or she used to avert the unlawful attack were reasonable
in all the circumstances…,.”
Putative
Private Defence
Under
South African Criminal Law, putative self-defence is available to an
accused who believes that he has a right to defend himself against an
unlawful attack; the author, J BURCHELL, in his book, Principles of
Criminal Law (4th
Edition)…, states the position as follows:
“The
objective test of private defence has the consequences that the court
may decide that although the defender believed that he was entitled
to engage in a defensive attack, objectively viewed, the situation
was not one in which he was justified in resorting to a defence or,
if he was, the steps taken in defence exceeded what was necessary to
repel the attack.”
Provocation
The
accused should show that he acted as a direct result of the
provocation. It is surprising to note that the accused was not
provoked by Enock Muleya whom he alleged he found being sexually
intimate with his wife - on his bed, in his house; and yet he wants
the court to believe that he was provoked by the deceased because had
seen him holding hands with his wife several hours before the murder.
The accused's conduct defies logic and the defence of provocation
has no foundation. The requirements of this defence are canvassed
under section 239 of the Criminal Law (Codification and Reform) Act
[Chapter
9:23].
The
post-mortem report indicates that the deceased had chop wounds on the
back of the head and a chop wound on the left temporal region with
brain matter oozing. The nature and severity of the injuries prove
beyond any doubt that the accused's sole objective was to kill the
deceased.
The
accused even confessed that when he realized that the deceased was
still breathing he struck him again. His fixed objective, at that
stage, was to complete his mission and extinguish the life of the
deceased. He proceeded to padlock the door to the bedroom hut to
ensure that in the unlikely event that the deceased regained
conscious, he would find himself trapped inside the locked house and
naturally die.
We
are satisfied, that, on the evidence led, particularly the graphic
explanation by the accused of how he executed the attack on the
deceased, his intention was to cause the death of the deceased. The
State proved its case beyond reasonable doubt.
The
accused is accordingly found guilty of murder with actual intent.
