MWAYERA
J:
Both
accused pleaded not guilty to a charge of murder as defined in
section 47 of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
The
State alleges that on 29 December 2017 and at Jambaya Store, Chief
Muusha the accused persons did each or one or more of them unlawfully
and with intent to kill or realising the real risk or possibility
that their conduct may cause death and continuing to engage in that
conduct despite the risk or possibility struck Moses Gwenzi with a
log and machete all over the body thereby inflicting injuries from
which the said Moses Gwenzi died.
Both
accused raised the defence of self-defence.
Accused
One's defence was to the effect that he was defending his wife,
Accused 2, who was under attack from the deceased. Further that it
was one Nomatter Sithole who struck the deceased's legs with a
machete.
The
second accused also relied on self-defence, stating that she was
defending herself from the deceased who had attacked her and that one
Nomatter Sithole is the one who struck the deceased with a machete on
the legs.
The
summary of the State case was to the effect that on 29 December 2017
the deceased approached the accused's homestead while armed with a
machete. The deceased then attacked the first accused's mother one
Arania Sithole with a machete injuring her in the process and went
away.
After
midnight the two accused together with one Nomatter Sithole who at
the time of hearing was said to be at large caught up with the
deceased at Jambaya Store. The trio struck the deceased several times
with a machete and sticks and force marched him to his home till he
fell down and the trio abandoned him.
The
deceased's body was only found on 30 December 2017 when it was in
an advanced state of decomposition. The doctor who examined the
remains, Dr Makumbe, concluded that the cause of death was
exsanguination (which in is simple terms is loss or draining of blood
from the body leaving it with insufficient blood to sustain life.)
Evidence
of 4 State witnesses was formally admitted by consent in terms of
section 314 of the Criminal Procedure and Evidence Act [Chapter
9:07].
It was clear from the evidence that the accused persons, one Nomatter
Sithole and the deceased had physical combat. Further it was apparent
the deceased's body was recovered in a state of decomposition with
multiple injuries.
The
State further adduced oral evidence from two witnesses namely Arania
Sithole and Tinashe Sithole.
Arania
Sithole, the mother, and mother in law of Accused 1 and 2
respectively recounted events of the night in question. The witness
made it clear that the deceased was her son in law married to her
daughter, one Juliet Sithole. The deceased's wife was at the
relevant time at the witness's home as she had deserted the
deceased's home over misunderstandings. The witness's evidence
was that her family and the deceased did not enjoy good relations as
the accused was disrespectful and violent towards her.
On
3 occasions the deceased had attacked and harassed the witness and on
the third occasion the deceased actually burnt down the witness's
kitchen hut.
On
the night in question the deceased approached armed with a machete
and he went to the kitchen where he indiscriminately struck the
inmates including children who were sleeping. According to the
witness when her family cried for help she went out to investigate.
Upon exiting the bedroom she met the deceased who then struck her
with a machete on the shoulder, forehead and leg. The witness told
the court that she sustained injuries which occasioned her
hospitalisation for about 9 days.
The
witness told the court that she later learnt that after the two
accused and Nomatter Sithole proceeded to the witness's parents'
home to notify about the attack and injuries on her, on the way they
met with the deceased.
She
had no personal knowledge of what transpired after she had fainted
but later learnt the deceased had passed on.
She
appeared emotional as evidenced by shedding tears while testifying
and she explained the emotions to be over being perplexed by the
deceased her son in law's violent and disrespectful conduct towards
her which culminated in the tragic end.
Generally
the evidence was that the accused was aggressive on the night in
question as he struck her and other people at her homestead using a
machete.
The
other witness who gave oral evidence Tinashe Sithole testified that
the two accused and one Nomatter Sithole approached the witness's
homestead and delivered news that the witness's sister, the last
State witness Arania Sithole had been struck and injured with a
machete by the deceased.
The
witness together with his mother proceeded with the accused to go and
see their hurt mother. Whilst on the way at Jambaya Store they came
across the deceased who had been struck with a machete all over the
body.
The
witness told the court that the first accused told him that he had
struck the deceased with a machete. The witness later changed his
version and pointed out that it was confusion but that Nomatter is
the one who struck the deceased.
Despite
these shortcomings in the witness's testimony it was apparent that
he came across the deceased when the latter was badly injured.
The
accused and Nomatter Sithole tried to force march the deceased to his
father's homestead but the latter who was badly injured could not
walk so the accused left him unattended in the open. The witness told
the court that upon his return from seeing his sister the accused's
mother he did not see the deceased at the position where he had
initially been left.
The
defence adduced evidence from the two accused who each testified in
their respective cases.
The
first accused mentioned that he rushed to assist the second accused
who was under attack from the deceased whom they met at Jambaya Store
still armed with a machete.
The
account on what actually transpired when the accused came across the
deceased was not very clear. According to the first accused, when
they came across the deceased at Jambaya Store the latter was
aggressive and he pursued Accused 2 whom he tripped to the ground
following which she screamed prompting Accused 1 and Nomatter Sithole
to come to rescue her.
The
second accused's version was also to the effect that Accused 1 and
Nomatter stepped in to assist and rescue her from the deceased.
It
was apparent from the two accused's testimonies that at the time
that the deceased was struck by Nomatter Sithole Accused 1 was
pinning deceased's head down while Accused 2 was pinning the
deceased down on the torso.
It
was also clear from the two accused that they subdued and overpowered
the accused when they left the scene proceeding to their maternal
grandparents. Upon their return the deceased who was mortally injured
was still at the scene.
The
first accused tried to force march him to his father's home but had
to abandon the futile exercise since the deceased could no longer
walk as he was badly injured.
I
must mention that the two accused's evidence on material aspects
tallied, the minor differences on whose idea it was to go to the
maternal grandparents was immaterial as it did not cloud evidence on
how the deceased ended up being fatally wounded. Both the accused
persons during cross examination made it clear that the two of them
with Nomatter Sithole assaulted the deceased in unison to overpower
him.
At
the close of evidence it was clear that the deceased was the
aggressor on the night in question.
It
is not in dispute that the deceased was armed with a machete. It is
also not in dispute the deceased had earlier struck the accused's
mother, Arania Sithole, injured and left her unconscious. Further, it
is common cause when the two accused and Nomatter Sithole met with
deceased they wrestled with him. It is also not in contention that
the deceased was overpowered and the machete fell into control of the
accused persons.
According
to the two accused, Nomatter Sithole struck the legs using the
machete while the two held the deceased down.
Given
the totality of evidence the court has to decide on whether or not
the accused persons teamed up with an intention to kill the deceased
and killed the deceased. In deciding on whether the accused had the
requisite intention the court of necessity has to consider the
evidence and circumstances of this matter holistically.
The
accused persons raised the defence of self-defence and defence of one
another.
It
is important at this stage to look at the requirements of the defence
as provided for in the law. Section 253 of the Criminal Procedure and
Evidence Act [Chapter
9:07]
is instructive. It provides for the defence of self-defence as a
complete defence as long as the requirements therein are met. The
requirements can safely be summed as ably stated in S
v Mudenda
HB 66/15:
“The
accused must show that there was an imminent attack. He must
establish that the action taken to defend himself was reasonable.”
See
also S
v Tafirei Runesu
HMA 37/17.
The
requirements as discerned from section 253 of the Criminal Law Code
are as follows:
1.
There was an unlawful attack.
2.
The attack must be upon an accused or third party where the accused
intervened to protect that third party.
3.
The attack must have commenced or be imminent.
4.
The action taken must be necessary to avert the attack.
5.
The means used to avert the attack must be reasonable.
Going
by the sequence of events on the night in question, it can safely be
concluded that the accused persons set out to go and advise their
maternal relatives about the bad condition in which their mother was.
The accused, from the evidence adduced were not armed and this gives
veracity to their assertion that they did not set out on a mission to
follow the deceased. In any event, it was agreed the direction where
they met deceased was opposite the direction of the deceased's
home. This further gives credence to the fact that the meeting was by
chance.
Given
the deceased was aggressive, violent and armed the accused on
realising him charging at them had to defend themselves.
The
deceased had earlier injured the accused's mother and the second
accused. That the second accused accompanied her husband to go and
report cannot be taken as a factor to show that she had not earlier
been attacked as suggested by the State but it only goes to the
nature and extent of injury occasioned on her. She was not
immobilised and that would not taint the accused and State witness'
evidence that the second accused and a child were also earlier
attacked by the deceased on the night in question.
The
deceased was armed with a dangerous weapon and thus the accused
resorted to teaming up for purposes of wading off the attack.
Once
accepted that the accused were acting in self-defence the next
question is whether or not that self-defence was within the realms of
the requirements of the defence.
That
the deceased who was armed with a machete was drunk is not in
dispute. In the first accused's confirmed warned and cautioned
statement tendered as exhibit 1 by consent he stated that the accused
produced a machete intending to strike Accused 2 but the accused
persons overpowered him. This position was confirmed by both accused
persons during cross examination when they gave vivid description of
how they unarmed and immobilised the deceased.
Given
the 2 accused and Nomatter had overpowered the drunk deceased the
question that begs of an answer is: “was it necessary to hack the
accused several times with a machete with the 2 accused pinning him
down?”
It
is our considered view that after disarming and immobilising the
deceased the further attacks on an unarmed drunk man who was on the
ground was not necessary and the means used were unreasonable.
For
the defence of self-defence to be sustained as availed in section 253
of the Criminal Law Code all
the requirements have to be met as evidenced by the conjunctive and
not adjunctive nature of the requirements. Once some of the
requirements are not met then the defence of self-defence as a
complete defence cannot be sustained.
In
this case the two accused and Nomatter Sithole, who going by their
association and conduct were acting with common purpose and in
concert and thus qualify as co-perpetrators overpowered the accused.
The
trio were not under attack when they delivered the fatal blows. The
fact that the accused pointed out that Nomatter struck the deceased
with a machete while they were holding the deceased down to
immobilise and facilitate the hacking places them at the scene and
the liability of one squarely falls on the other. Sections 195, 196
and 196A of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
are instructive. The principal perpetrator and co-perpetrator are
clearly defined therein. Once it is established the co-perpetrators
assisted the principal perpetrator as occurred in this case were
Nomatter Sithole struck with the machete while Accused 1 and 2 were
holding down the upper body of the deceased to facilitate the
striking, then liability of the principal perpetrator squarely falls
on the co-perpetrators.
It
is apparent that the accused together with Nomatter reacted to wade
off an attack, they however, in so doing exceeded the limits of
self-defence. The accused ought to be convicted of culpable homicide
as provided for in section 254 of the Criminal Law Code.
The
defence of self-defence cannot be sustained as force used was
unreasonable and disproportionate to the attack. It is a partial
defence to the charge giving rise to culpable homicide as clearly
from the circumstances the accused persons did one, or both or more
of them realised that death may result from their conduct and
negligently failed to guard against such.
In
any event after observing that the deceased had been seriously
injured the accused persons who had occasioned the harm by exceeding
the limits of the defence of self-defence left the deceased
unattended and that gives rise to liability by omission. A badly
injured bleeding man who was not able to walk was abandoned and he
bled to death.
The
accused persons acting with common purpose with one Nomatter Sithole
negligently caused the death of the deceased and are thus guilty of
culpable homicide as defined in section 49 of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
Sentence
In
reaching at an appropriate sentence we have considered all mitigatory
and aggravatory circumstances advanced by the respective counsels. We
have also considered the Probation Officer's report and
recommendations therein.
It
is important to point out that we requested for a Probation Officer's
report given the second accused's age of 17 years thus a juvenile.
Although the second accused was customarily married to first accused
the age estimation confirmed she was 17 at the time of trial which
places her at 16 at the time of commission of the offence.
The
first accused was 18 at the time of commission of the offence and 19
at the time of completion of trial. Counsel for the first accused
Ms
Maganga
pointed out in mitigation that the court should consider the
youthfulness of the first accused.
Indeed,
the first accused is an immature adult whose moral blameworthiness
when one considers the circumstances leading to the commission of the
offence is not high. The deceased was aggressive and violent on the
night in question and he showed no respect at all for his in-laws as
he hacked the first accused's mother who was the deceased's
in-law.
Again
on the second encounter with the two accused and one Nomatter
Sithole, the accused was still armed with a machete. The deceased was
more to blame for the violence that ensued leading to this
unfortunate loss of life.
Mr
Mandikate
for
second accused submitted that the accused is a juvenile first
offender. She has the disadvantage of having grown up as an orphan
since both her parents passed on when she was at a tender age. She
seems to have found solace in early marriage to the first accused as
a way of having family.
The
childhood pressure of joining in the fracas is understandable given
the relationship between her and the first accused. The immaturity
and lack of appreciation of the gravity of the offence is visible
going by the manner she testified.
Both
accused although they pleaded not guilty to murder were sincere on
their involvement in the physical attack on the now deceased. Both
accused are first offenders who stand convicted of negligently
causing the death of another. The trauma that attaches and the stigma
of having caused the death of another will live with the two accused
for the rest of their life.
In
mitigation we have also considered that both accused have been in
custody for about 9 months awaiting the finalisation of the matter.
The period of incarceration is not an easy period moreso with the
tension brought about by the suspense of not knowing the outcome of
such a grave charge.
In
aggravation as correctly pointed out by the State counsel Mrs
Matsikidze
is the fact that precious human life was lost as a result of the
negligence of the accused. The accused teamed up with one Nomatter
and assaulted the deceased severely injuring the latter. The accused
on realising the severity of injuries caused on the deceased who had
been immobilised left the deceased unattended which culminated in the
deceased's bleeding to death.
The
offence is deserving of custodial sentence.
It
is our considered view that although the second accused is a juvenile
there is no justification in differential treatment between herself
and the first accused her husband. Both accused's involvement in
the commission of the offence speaks volumes of their partnership in
crime.
The
circumstances of the matter and the fact that the second accused is
married to first accused militates against the suggestion of placing
the second accused at a training institution. She has lived as a
married person for more than 2 years and for her to be lumped up with
juveniles at the training institution would be detrimental to the
other juveniles who are regarded as children in need of care.
The
recommendations by the Probation Officer that the second accused be
sentenced like an adult is sound as it appears to have been carefully
thought.
Given
the age difference of the two accused, their relationship as husband
and wife and the manner in which the offence was committed, this is a
case where differential treatment for sentence would not only be
unjust but uncalled for.
Having
considered the circumstances of the offence, the mitigatory and
aggravatory factors the offence is deserving of a custodial term.
In
seeking to balance the offence to the offender and tempering justice
with mercy while at the same time considering the societal interests,
a wholly suspended prison term will be appropriate.
Each
accused is sentenced to 3 years imprisonment the whole of which is
suspended for 3 years on conditions accused does not within that
period commit any offence involving the use of violence on the person
of another for which he is sentenced to imprisonment without the
option of a fine.
National
Prosecuting Authority,
State's legal practitioners
Matsika
Legal Practitioners,
1st
accused's legal practitioners
Mugadza
Chinzamba & Partners,
2nd
accused's legal practitioners
