TSANGA J: The
accused, Madalitso Ranchi, a male adult, was charged with murder in
that on the 25th of July 2015 at B37 Beatrice Location, Beatrice he
had unlawfully and with intent to kill murdered his wife Pamela
Muzondo, or realising that there was a real risk or possibility that
death might result, had struck the deceased with an unknown object
thereby causing injuries from which the said Pamela Muzondo died.
The
accused pleaded not guilty. The essence of his defence was that he
never intended to kill the deceased, but had lost control after
finding her with a lover.
The
State led direct evidence from two persons in its line of witnesses.
The direct evidence came from Susan Unati Moyo the deceased's
daughter and step daughter to the accused. Stanford Bonde the alleged
paramour also gave evidence.
The
witnesses whose evidence was accepted in terms of section 314 of the
Criminal Procedure and Evidence Act [Chapter
9:07] included that
of Laina Muzondo, the mother of the deceased, Ganizani Ranchi the
brother of the accused, Kudakwashe Hwari a cousin of the deceased,
and, Dzingarai Brighton Mozorodze a member of ZRP stationed at CID
Beatrice.
The
post-mortem report sworn to by Dr Mauricio Gonzalez was also admitted
into evidence by consent.
It
was not in dispute that the accused had killed the deceased. The core
issue for determination at the trial was whether he had indeed done
so out of provocation from discovering his wife's infidelity.
The
State's evidence
Susan
Unati Moyo: She
is 11 years old. She told the court that the day in question was a
Saturday morning (25th of July 2015), when her mother had been
washing plates outside but had not finished. She had also started
doing laundry but had not finished when she had been called inside
the house by the accused.
She
herself was playing outside with her young brother.
Whilst
at the sink outside she had heard her mother cry out “maiwee”.
She had not seen her mother come out of the house again. Her brother
who was feeling hungry had gone to knock at the door. The accused had
come to the door and had given them $50.00 to go and purchase food.
They had bought biscuits and drinks. They had returned and had eaten
outside. Thereafter the accused had told both of them to go to their
grandmother's house with specific instructions that they were to
say that they had been sent there by Stanford Bonde. The accused told
them that their mother had gone to work and had given them 50 cents
to use on their way to their grandmother's. They had arrived
towards sunset and she had told her grandmother as instructed to say.
In
cross examination, she said she knew Mr Bonde as an elder at their
church. He had not been a visitor at their house on either the Friday
or the Saturday. She had last seen him at church the previous Sunday.
Stanford
Bonde: His
evidence was that he knew the deceased as a fellow parishioner at
Living Word Citadel. He also knew the accused as the accused was at
one time the pastor. The accused had later formed his own church
after facing fraud charges for the double sale of stands. He had
elected to form his own church rather than face censor by the church.
On
the 27th of July 2015, Laina Muzondo, the deceased's mother, had
come to his house looking for him. She had stated her grandchildren
had come to her house on his instructions and wanted to know if he
had seen the deceased on that day that he had instructed the children
to come. He had told her that he had not sent the children at all to
her and neither had he seen the deceased on the day in question. He
had referred her to the accused's mother's house. She had
returned with the accused's mother and two of the accused's
brothers. They told him that they had gone to the deceased's
residence and had broken the door and what they had found had been a
letter purportedly written by Pamela to him. He had told them that it
was not possible for Pamela to have a written such a letter unless
she had lost her mind.
The
contents related to his coming to visit her at night on the pretext
of going for prayers. The letter also related how she had had to
abort his child and yet he was no longer coming to visit.
He
told the court that he had never had any relationship with the
deceased and therefore found the letter strange and unlikely to have
been authored by the deceased. He had told the relatives as much. He
had last seen her on the 19th of July 2015 at church.
When
shown the letter he had suggested that the police be contacted
instead of wasting time.
On
the 28th of July he had been summoned to the police station by the
police. That same afternoon he had again been visited by Laina
Muzondo and the deceased's sister who wanted an explanation
regarding the letter and if he knew where Pamela was. He had
suggested that for the sake of progress it would be best to ask the
children in his presence who had really sent them since he had never
done so. They had advised him that they would return as they needed
to go to the house to fetch the children's clothes as the children
had come to their grandmother's without carrying any clothes.
He
had gone to Laina Muzondo's house later that day and Susan had been
called. When asked where her mother had been on that day Susan had
narrated the events of that day which have already been captured. She
had then also revealed that they had been sent by the accused and his
admonition that they were not to reveal that he was around.
They
had proceeded thereafter to file another report at the police
station. The police had come to his house the following morning and
they had gone with him to the deceased's residence together with
the accused's brother. As the place had a foul smell, in tracing
its source the police had requested the bed to be lifted. That is
where the deceased's body had been found in a dish. He had also
spent that night in detention under investigation but had been
subsequently cleared.
As
regards the letter, he told the court that the police had established
from the accused once he had come back into the country and had been
arrested, that he was the one who had in fact authored the letter
from a page taken from his own diary. It had also been established
that it was the accused's handwriting. Asked in cross examination
whether he had ever visited the accused's house, he explained that
he had done so at the time when the accused was still their pastor,
when, as a church elder, he and others used to pass through the
pastor's house to collect chairs.
Core
issues from the admitted evidence
Of
significance from Laina Muzondo's admitted evidence was that when
she had checked with her neighbours after learning that the deceased
had not gone to work on the 28th of July, they confirmed having last
seen the deceased on the 25th of July 2015 which was a Saturday.
Of
importance from Ganizani Ranchi's evidence was that when they went
into the house on the 28th of July after the deceased had failed to
show up for work the only suspicious thing they had found had been
the letter purportedly written by the deceased which was then taken
by the accused's brother.
From
the admitted evidence of Dzingirai Brighton Mazorodze from the
Criminal Investigation Department was that after the discovery of the
body on 30 July 2015, he had searched the whole house and observed
blood stains on the door wall, drops of blood from the door wall on
the floor to be bed and stains of blood on a cardboard box used as a
washing basket.
From
the admitted evidence of Dr Mauricio Gonzalez was the crucial fact
that the deceased had died from haematoma, and head trauma due to
assault.
The
Accused's evidence
The
accused narrated how he had returned home on Friday the 24th of July
2015 from Malawi where he had travelled for three weeks to preach. He
would go often to Malawi. He had knocked but had received no answer.
The door was unlocked and he had opened. He heard voices inside. The
children were sleeping. He had proceeded to the bedroom where he had
found a half-clad Stanford Bonde sitting on his bed who had his
trousers on but had no shirt. His wife wore a short nightie and no
panties. Stanford Bonde had tried to talk to him but he had just
stared at his wife in disbelief while Stanford Bonde taken his shirt
and had walked out.
He
had checked on the floor and observed a used condom. He had asked his
wife what had taken place since he loved her very much. She had
insisted on asking for forgiveness.
In
anger he had asked her to leave and go to the dining room. She had
insisted on explaining herself and that is when he had pushed her
hard through the door opening which had no door frames but sharp
brick edges. She had hit her forehead and had fallen backwards but
facing upwards. She was bleeding.
He
had washed the wound using water from a big green tub that his wife
kept in the bedroom. He had also removed her night dress intending to
take her to hospital. He had dressed her in her underwear, a black
skirt and blue T shirt. He had tried to use a towel to stop the
haemorrhage but she had continued bleeding. All the while she had
groaned in pain before taking her last breath and falling down dead.
He
had thought of waking the children but had realised it was not
necessary. Thereafter he had mopped the blood on the floor so that
the children would not see it as they were in the habit of coming to
the bedroom. He had taken the body and put it in the green tub
because he did not want the children to see the body when they woke
up the following morning. He had put the green tub under the bed and
had slept in the dining room.
The
children had woken up the next morning without noticing what had
happened. He had told Susan that her mom had gone to work.
At
around 11am her young brother had come complaining of hunger and that
is when he had given them money to go to the shops. When they came
back and had eaten that is when he had told them to pack their bags
and go to their grandmother's house. He admitted telling them to
say they had been sent by Stanford Bonde because their grandmother
thought he was in Malawi. He had locked the door after their
departure and had proceeded to Malawi.
His
father had called him in Malawi to say he should come back as
something had happened to his wife but had not told him his wife was
dead. By then, of his own volition, he had made up his mind to return
and turn himself in so the law would take its course.
Upon
his return on the Thursday night he had been intercepted by armed
police on his way home at around 1am to tell his parents what had
transpired. He had been locked up and forced to write a statement.
On
the Saturday he had been taken for indications all the while with the
police telling him what to say. The accused told the court that they
would even stomp on his foot when he refused to do their bidding
particularly as regards what they wanted him to say with respect to
what he had used to assault the deceased.
He
had refused to sign the documents.
Suffice
it to state they were not part of the record.
In
cross examination he was challenged on the variance of his story with
that of the witness Susan Moyo on the crucial score that the deceased
had been at home on Saturday morning and that she had washed some
dishes and done some laundry, which tasks she did not complete
because he had called her inside. He insisted that the incident had
taken place on Friday night when he returned and that the children
were asleep.
On
why the children had not seen Stanford Bonde on either the 24th or
the 25th, his answer was that they were fast asleep on the 24th when
the incident occurred.
Asked
why the deceased would have written a letter to Stanford Bonde if she
had been sleeping with him on the night of the 24th, the accused
stated that the letter had been written a long time ago when they
were in love.
He
had not queried the evidence-in- chief by Stanford Bonde that the
police had unearthed that the accused had in fact written the letter
and this was put to him.
When
it was also put to him that he had used an unknown object to assault
his wife, he stated that he had just arrived would not have had a
chance to find a weapon.
Additionally,
when it was put to him that he was not provoked and that the
extramarital relationship was in his mind, he maintained that he did
not appreciate what he was doing when he pushed the deceased and that
he only came back to his senses later on. He was insistent that the
adulterous act was something that he had seen with his own eyes.
On
the inconsistency of his conduct with that of an innocent person –
that is hiding the body, telling the children to lie and then fleeing
to Malawi, his explanation was that he had been gripped by fear of
his in laws, the police, and, what neighbours would think of him.
Primarily, he feared being attacked and another death ensuing.
The
closing submissions
The
State argued that the evidence of its witnesses should be preferred
over that over the accused as the latter had not been a credible
witness in his evidence. Moreover he had been shown to have lied on
two issues – namely, telling the children not to mention he was
home on the day he sent them to their grandmother and also as regards
the letter that had been found in the house which the police had
unearthed had been written by himself.
In
addition, no condom had been found by the family members who searched
the house or by the police to lend credence to his version of events
and yet they had found his letter which he had left for all to see on
top of the sub hoofer.
The
State further argued that the evidence of Susan Unati as a child
witness had been given in an intelligent and credible manner. [S
v Moyo
HH 236-16; S
v Sibanda
1994 (1) ZLR 394
(S)].
Mr
Muzivi further
argued that the accused was not at the time suffering from any acute
emotional stress or diminished responsibility and that he knew
exactly what he was doing. He relied on the case of S
v Gambanga
1997 (2) ZLR 1 where
the accused had been found to have known what he was doing under
similar circumstances when he killed his wife. He had been found
guilty of murder with constructive intent.
He
further argued that the accused has the burden of proving diminished
responsibility. [S v
Jafta Dube 1997
(1) ZLR 229 (H)].
No
medical evidence had been placed before this court to show that the
accused was suffering from mental disturbance at the time.
Mr
Muzivi also
argued that from his conduct the accused had foresight of the real
possibility of death and he had recklessly regardless. [S
v Mugwanda
2002 (1) ZLR 574 (S);
S v
Gumbi 1994
(2) ZLR 323 (S)].
In
the final analysis, he argued that neither provocation nor diminished
responsibility had informed the accused's actions in this case. He
therefore urged the court to find a verdict in terms of section
47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
Ms
Mapurisa,
on the other hand, emphasised in her closing submissions that the
accused had no intention to kill and that he was seriously provoked
and lost his senses.
She
argued that the evidence of the Susan Moyo should not be relied upon
as she was susceptible to being coached to lie and could again have
lied to the court in the same manner she had done to her grandmother.
She emphasised that the child's evidence pointed to the fact that
the accused and the deceased lived peacefully and as such the accused
would not kill his wife for no reason.
Counsel
also highlighted that Stanford Bonde in his evidence had not
portrayed the accused as a bad person other than the fraud charges
that he had faced at one time. Furthermore, she argued that the fact
that Stanford Bonde had indeed visited the accused's home meant
that it could not be ruled out that he had done so on the night in
question.
She
put forward that the State was ultimately relying on circumstantial
evidence which had to be treated with caution. S
v
Mlambo
HH43-16.
On
intention she argued that any reasonable person would not have
foreseen death ensuing. S
v Tazvinga
1968 RLR 121.
In
her view, there was also reasonable doubt as to whether any weapon
had been used. The fact of putting his wife's body and then hiding
it was emphasised as indicative of his temporary insanity as no
reasonable person would do that. She maintained that had it not been
for the adultery, he would not have killed his wife.
In
the final analysis, she argued that the accused should be found
guilty of culpabale homicide and not murder.
The
Legal Position
Our
Criminal Law (Codification and Reform) Act [Chapter
9:23] recognises
provocation as a partial
defence to a murder charge in section 239 whereby;
“….the
person shall be guilty of culpable homicide if, as a result of the
provocation -
(a)
he or she does not have the intention or realisation referred to in
section forty-seven;
or
(b)
he or she has the intention or realisation referred to in section
forty-seven but
has completely lost his or her self-control, the provocation being
sufficient to make a reasonable person in his or her position and
circumstances lose his or her self-control.”
The
defence, as couched, addresses the subjective element under (a), in
terms of what the accused actually intended. It further addresses the
objective element under (b), in the sense of loss of control where an
ordinary person would have lost such control.
When
the defence is used in circumstances such as this where an accused
has killed his wife due to adultery, the assumption is that a
reasonable person would have behaved likewise hence the justification
for a finding of culpable homicide instead of murder.
The
accused also relied on diminished responsibility which is provided
for in section 218 of the Criminal Code.
The
gist of the provision is that if, at the time of committing a crime,
the capacity of a person to appreciate the unlawful nature of their
conduct or to act in accordance with that appreciation is affected on
account of mental or emotional stress a court can take this into
account in imposing a sentence. However, where the acute mental or
emotional stress is self-inflicted, then the court may disregard the
assertion that responsibility was diminished.
Given
that the only witness is dead who could speak conclusively to the
fact of provocation apart from the accused who so asserted, the
critical issues in this case was therefore whether the State
disproved provocation beyond a reasonable doubt or whether this was
simply a case of murderous violence.
Legal
and Factual Analysis
There
was clearly a conflicting version of facts between what the State
witnesses said in relation to this matter and the accused's own
narrative of the events leading to the fateful killing.
The
ascertainment of the truth therefore has to emerge from an analysis
of the testimonies that were heard by this court.
In our view, there was nothing deficit in the evidence of Susan Moyo
who told this court that her mother was alive and well on Saturday
morning of the 25th of July 2015.
Whilst
she was nine years old when the fateful events of that day occurred,
she was able to tell the court the exact circumstances of how she and
her brother had ended up at her grandmother's. There was no reason
to discredit her evidence particularly since it was never in contest
that the lie that she had told her grandmother about being sent by
Stanford Bonde had been one crafted by the accused himself. He had
impressed upon her to tell that lie which the accused himself
admitted.
He,
rather than the witness Susan Moyo, is the one who showed the
propensity for dishonesty.
If
there was anyone's evidence to be suspicious of due to the
likelihood of lying, it would be that of the accused and not this
witness.
As
a school going child she had the capacity to relate fully well what
she remembered of that day when the accused sent them to their
grandmother's house. There is equally a shift away from
disbelieving the evidence of children. They have largely been shown
to be truthful under optimal circumstances. Empirical research has
also shown that the cognitive ability of children of school going age
is just as credible and reliable as that of adults especially if
obtained under optimal conditions.1
This
court was satisfied that Susan Moyo told the court what she knew.
There was no accused to bring undue pressure upon her to lie this
time since he has been in custody. Furthermore, counsel for the
accused cross examined her respectfully and compassionately in that
rare instance where the defence in relation to a witness from the
other side, genuinely confines itself to truth seeking. There was
observably no casting aside of this purpose, just for the sake of
making life unbearable for the witness as is often the case.
Furthermore
her evidence that her mother was alive on Saturday the 25th was also
corroborated by the admitted evidence of Laina Muzondo, which
evidence was not challenged.
As
stated in a quest to find her missing daughter, she had established
that neighbours had last seen her on the 25th of July 2015 which was
a Saturday. The accused's evidence that he had found her with
Stanford Bonde on the night of Friday the 24th when he returned from
Malawi and had killed her for that reason on that Friday night was
therefore not true. There was no Stanford Bonde who caused his
provocation on the night of the 24th.
We
also found Stanford Bonde's evidence to be credible that he had
last seen the deceased at church on the 19th of July when she had
attended mass.
Susan
Moyo had also stated as much as regards the last time she had seen Mr
Bonde.
His
evidence that the police had established that the letter purportedly
written to him by the deceased had in fact been written by the
accused was also not challenged when he gave this evidence. If that
had not been the case one would have expected that his counsel would
have spared no prisoners in revealing the truth at the time Mr Bonde
was on the witness stand. Moreover we took note of the fact that he
had been thoroughly investigated by the police and even detained
overnight before being found innocent.
Stanford
Bonde was also clear in his evidence that the children's
grandmother had told him that the children had come without any spare
clothes yet the accused in his evidence crafted a story where the
children had packed their clothes before he sent them away. Susan
Moyo's evidence was also clear that what the accused had given them
was 50 cents to spend on the way to their grandmothers. She did not
mention being let into the house to pack any clothes because that
never occurred. He clearly had not wanted them in the house after the
fatal scream that Susan had heard on that Saturday morning.
In
addition, the admitted evidence of the police officer who attended
the scene was to the effect that the search of the room which had
been conducted upon discovery of the body had revealed blood stains.
No condom was found. There was equally no mention of a stained night
dress which the accused says he removed from the deceased when he
dressed her in preparation for hospital.
Furthermore,
in support of the State case that the deceased had been assaulted by
the accused was the post mortem report which was equally unchallenged
as evidence and which clearly stated that the deceased had suffered
head trauma due to
assault.
For
whatever reason the accused assaulted the deceased, it was certainly
not because he was provoked by Stanford, because there was no
Stanford Bonde at his residence on the 24th of July as he alleged nor
on the 25th of July when his wife was last seen alive by her
children. This court was satisfied beyond a reasonable doubt that the
narratives of the State witness were true in their essential
features.
The
accused's disposition for truth telling on the other hand was
particularly lacking. Right from the onset after committing the
murder he put in motion his own version of “how to get away with
murder” by crafting a series of lies. He has clearly continued to
imagine in his head that if he continues to regurgitate falsehoods
they might just become believable.
His
explanation that he returned to turn himself in was obviously false
as he headed nowhere near a police station when he arrived. He had
returned because his father had called him to tell him something had
happened to his wife. It would have been strange for him not to come
as he had crafted a lie that he had been in Malawi all along. The
fact that his father had not mentioned that he was at all under
suspicion made him believe he had gotten away with murder.
The
accused's account of his wife's infidelity on the night he says
he returned from Malawi was also not only strained but was outrightly
implausible.
He
had allegedly simply stared at his wife as Stanford Bonde who had
tried to speak to him, put on his clothes before calmly walking out
of the house only for the accused to then lose his cool when his wife
“tried to explain”.
It
is also implausible that all the anger he then unleashed and his
wife's moans and groans from pain would have happened without
awakening any of the children whom he said were only a door away.
His
whole story of dressing the deceased up to take her to hospital was
simply concocted in our view to explain away why she was not found in
her night dress, if, as he said, the murder had happened on the night
of Friday 24th.
The
accused crafted a rosy picture of his marriage to the deceased. It
was hard to see why she would have been unfaithful to him if life was
as rosy as he depicted.
The
State evidence having shown conclusively that there was no act of
infidelity that the accused stumbled upon as he claimed, this court
is only left to join the pieces based on socio-legal research, in
order to understand what may have been the trigger for the violence.
In
Zimbabwe, research has shown that after squabbles about money,
jealousy is the second most important cause of violence against
women.2
It
arises from possessiveness and sexual jealousy or challenge to male
behaviour.
This
court can only surmise that the jealous demon in him got the better
of him that day. At most it would appear that the accused may have
had his own suspicions in his head about his wife's fidelity since
by his own admission he frequently travelled to Malawi. But suspicion
alone can never be the basis of using provocation as a defence for
fatally killing one's spouse.
In
any event, and this is the crucial point, the use of the provocation
defence in a situation where a spouse is killed because of adultery
would be unlikely to withstand survival under our present
Constitution. This is because section 52 which accords the right to
personal security, categorically prohibits violence at the hands of
both private and public actors.
“52
Right to personal security
Every
person has the right to bodily and psychological integrity, which
includes the right —
(a)
To freedom from all forms of violence from public or private
sources;” (My
emphasis)
The
crucial import of this provision is that by zeroing in equally on
freedom from all
forms of violence
from public as well as private sources, the result is protection from
violence within family and domestic spheres as private sources of
violence.
The
Constitution, as the highest law of the land embraces a zero
tolerance for violence in all instances as a fundamental human right.
It is not negotiable.
The
domestic sphere happens to be a major source where women in
particular encounter the most violence. For an understanding of
similar reasons of women's vulnerability when they threaten to
leave or at the point of separation or thereafter see also Sue
Bandalli., Provocation
- A Cautionary Note 22
J.L. & Soc'y 398 1995 at p401.
It
would therefore be ludicrous to then allow a man who kills his wife
due to so claimed infidelity-inspired rage, to get away with murder
by harnessing the defence of provocation in order to be treated with
compassion by reducing that murder to culpable homicide.
Whatever
its historical, biblical or evolutionary aspects, the use of the
defence of provocation in instances of spousal killing is
increasingly seen as flawed3.
It
is regarded as gender biased and archaic not just because of its
proprietary and possessory underpinnings but because it does not
stand up to logical scrutiny that the reaction of killing is
necessarily that of reasonable person4.
In
fact in our context the claim for adultery damages even though
equally archaic in its possessory and proprietary undertones, remains
recognised often with aggrieved men and women demanding hefty damages
from the perceived wrongdoer. (See Basil
Mukururu v Derick
Vori HH174/16;
Muhwati v Nyama
2011 (1) ZLR 634 (H);
Jhamba v
Mugwisi 2010
(1) ZLR 124 (H)).
As
has been further observed, throughout the world most married couples
encounter insults, suspicions, and confessions of infidelity by their
spouse and yet only a small number resort to killing.
“Drawing
on the work of psychologists, one set of commentators has asserted
the fallacy of the notion of loss of control:
Angry
impulses do not so overwhelm us to the point that we become enslaved
by them. We are endowed with a high level of choice concerning how we
act, even in relation to the most provocative forms of conduct. Those
who lash out when confronted with a distasteful experience do not
respond in this manner because of an absence of a meaningful choice.
They do so because they elect
to do so. ... [T]he
desire to ensure that a loved one does not die in pain (resulting in
an act of mercy killing) might be just as powerful as the anger
stemming from a confession of adultery. The latter should enjoy no
special privilege in the law....
[Loss
of control requiring that the accused was) 'so subject to passion as
to make [them] not master of [their] mind' [is] more akin to a state
of automatism than one with the requisite mens
rea for murder (Neal
& Bagaric 2003:247-248)”.
Zimbabwe
is a signatory to CEDAW under which its specific obligations under
Article 2 are:
“Article
2
………..
(f)
To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which
constitute discrimination against women;
(g)
To repeal all national penal provisions which constitute
discrimination against women.”
Clearly,
in so far as the defence of provocation is available as a partial
defence in situations of spousal killing for infidelity, the Criminal
Code needs to be clarified with a view to harmonising it with the
Constitution.
The
adultery defence for crimes of passion ought to be categorically
removed from the ambit of provocation because it increases women
vulnerability to violence given that women and not men are
predominantly though not exclusively at the receiving end of crimes
of passion. In fact the recommendation of the UN Division on the
Advancement of Women is that both “honour” and adultery be
removed as defences for premeditated killings or “crimes of
passion”5.
Our
finding is that the accused killed the deceased not because of any
provocation stemming from adultery but because of his own fears
inspired by jealousy. In flinging her against the wall and assaulting
her as the medical report clearly confirmed, he foresaw that death
would result and had proceeded regardless.
We
find the accused guilty of murder in terms of section 47(1)(b) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
In
mitigation the accused is said to be a first offender and was a
breadwinner before the commission of this offence.
In
aggravation, the State emphasised the lack of regard shown for the
sanctity of life. Whilst bearing in mind the need to individualise
his sentence, the sentence called for was one that would send a clear
message against the tolerance of gender based violence in domestic
settings. This was said to be more so in view of the increase of
murders taking place in this context.
As
this court found, the accused was guilty of reckless murder.
There
has been a wanton loss of life which has resulted in untold pain for
the deceased's family. The deceased was only 34 years old when her
life was cut short at the hands of the accused. There has been no
remorse. The children have lost their mother and will have to go
through life with the trauma of knowing that she died at the hands of
the accused – a man they were supposed to look up to as their role
model.
Also
lost was someone's daughter, a sister, an aunt and a friend to
many.
What
aggravates their loss is that the accused was a pastor who was
supposed to be an example to others on temperance and virtue. The
appropriate sentence in this case which fits the offence and the
offender is 20 years.
The
accused is accordingly sentenced to 20 years imprisonment.
National Prosecuting Authority,
State's legal Counsel
Matizanadzo and Warhurst,
Accused's legal practitioners (Pro deo)
1
See Fiona Raitt, Judging
Children's Credibility:
Cracks
In The Culture of Disbelief or Business As Usual
744New
Criminal Law Review Vol 13 No.4 Fall 2010 pp 735-758 at p745
2
A Armstrong, Culture
and Choice:
Lessons
from Survivors of Gender Violence in Zimbabwe
(Harare,
Speciss Print “N” Mail, 1998) at p15
3
For a discussion of the evolution of the defence and its problematic
context in present times see K.J. Kesselring No
Greater Provocation? Adultery and the Mitigation of Murder in English
Law,
34 Law & Hist. Rev. 199 2016
4.
See "Good Practices in Legislation on 'Harmful Practices'
against Women," 2009,
19-20.
http://www.un.org/womenwatch/daw/egm/vaw
legislation 2009/Report%20EGM%20harmful% 20practices.pdf.
5.
Extracted from Graeme Coss, The
Defence of Provocation: An Acrimonious Divorce from
Reality
18
Current Issues Crim. Just. 51 2006-2007 pp 51-78 at pp 52-53
