TSANGA
J:
The
accused Robert Tevedzayi is charged with the murder of his wife,
Abigail Chindavata. She was a mother to his five sons. She was only
36 years old.
The
two had been married for about fifteen years. Her husband is alleged
to have assaulted her to death using a hoe, an axe and a metal bar in
their bedroom on the night of 12th-13th
of March 2017. The incident happened at Village 3 Maryland Farm
Compound, Macheke.
He
pleaded not guilty to the charge.
In
two sentences he provided his Defence Outline. He had walked into the
house and had seen his wife with a lover. The lover and his wife had
started attacking him and in self-defence he resisted the attack.
During the course of the trial he further added intoxication to his
line of defence.
In
addition, his far lengthier warned and cautioned statement was also
before the court as exhibit 2.
The
post-mortem report by Dr Javangwe was admitted in evidence as exhibit
No.1. It gave a detailed description of the injuries that had been
inflicted and concluded that she had died of severe head injury
consistent with mixed blunt/sharp objects. She also had face
injuries. One of her ears according to the report had been hacked
off.
The
evidence of her friend Dainah Matyora who had attended the scene
after the fatal attack as well as that of the Investigation Officer
Panganayi Chando who attended the crime scene was not in dispute and
was admitted in evidence in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter
9:07].
The
warned and cautioned statement is vital especially since the accused
person sought to depart from some of its material content.
It
was made and signed on the 21st
of March 2017 and confirmed the following day before a Magistrate. It
gave a vivid and chilling account of what transpired on that fateful
night. The chain of events had begun on Friday the 11th
of March 2017, when the couple had gone to Craiglea Clinic for
treatment for a sexually transmitted disease. This was at the
accused's behest. He had been advised to buy two injections, one
for each of them. His wife had also been given some tablets.
When
they arrived home, his wife had proceeded to the local Chairperson's
residence. His explanation is that she had done so because she knew
that she was the one who had given him the sexually transmitted
disease. According to him, his wife had also gone to the police the
following morning to report the domestic dispute and had returned
home later that Saturday afternoon.
In
a bid to look for money to buy the two injections on that same day,
the accused had gone to Durlstone Farm where he now normally stayed.
He too had returned around 3pm in the afternoon without success. He
had told his wife that he had failed to get money to which she had
replied that it was his own problem as she had merely accompanied him
to the clinic and that he was the one who was sick.
This
had enraged him because he was unable to have sexual intercourse with
any other woman other than his wife as his wife had “sexually
locked” him.
He
averred in his statement that as a result he had not slept with
anyone but his wife. As such, this had convinced him that she was the
vector of the disease he was suffering from.
A
dispute had ensued as a result of her perceived lack of sympathy for
his plight. He had enquired where she had slept the previous night
and she had told him that she had proceeded to the Chairperson's
home. She had also told him that the police wanted them to come to
the station that coming Monday as she had also gone there. She had
then said that she was no longer interested in going to the police on
Monday.
The
accused described, in his statement how, at that point, he had
assaulted her by slapping her. She had grasped him by the throat. He
had overpowered her and had picked up a hoe which was in the house
and had briefly assaulted her with it. She had managed to grab the
hoe. He had then picked up a small axe which was also in the house
and had effected blows on her face and the head. He could not
remember how many blows. He had only stopped assaulting and hacking
her with the axe when she fell to ground. Thereafter he had picked up
a metal bar which was also in the house and had further bludgeoned
her with it on the face and head. He could not remember how many
times. According to him, he had only put down the metal bar when he
could hear no more cries and he could see she was limp.
In
sum, the full nature of the attack on his wife according to his
warned and cautioned statement, was that he had started off by
assaulting her with his bare hands, proceeded thereafter to using a
hoe, before escalating the attack to using an axe and concluding for
final measure with a metal bar. Thereafter he had left the house and
had left her lying down. He said he did not know she was dead. He had
gone to Durlston where he normally stayed. On arrival he had tried to
kill himself by taking a tobacco pesticide. When people came that
afternoon they had found him vomiting and had taken him to hospital.
The
metal bar was admitted in evidence as exhibit no.3 whilst the axe was
admitted as exhibit no 4. The certificate of weights of both these
items was admitted as exhibit no.5. The metal bar weighed 12.90kgs
and measured 86cm by 9.5cm width. The small wooden axe weighed
0.58kgs and the wooden handle was 60cm in length.
The
Evidence
The
accused's minor son and a Form 3 pupil, who shall be referred to as
X, gave evidence. He is the eldest in a family of five boys. He told
the court that his father, who was in fact not staying with them
having moved out some months earlier, had come home on the 12th.
He was staying at Durlston Farm and would come occasionally. That day
they had eaten and had gone to bed at around 8pm. His younger brother
and he were sleeping in one room, whilst two other younger siblings
aged 5 and 2 and a half years at the time were in the same room and
the accused and their deceased mother.
He
had been awoken in the early hours by his mother's piercing screams
asking him to open the door. She was saying she was being injured.
His younger brother who was with him had also woken up, whilst he
himself had jumped out of the window to try and alert neighbours. His
brother had followed. He had tried to call one neighbour who had
refused to come on the grounds that he did not get along with the
accused. He had managed to find another neighbour, Aaron Simbarashe
Chiwara whom he referred to as Simbarashe who had agreed to come.
Simbarashe had tried to intervene but had been threatened by the
accused who held something in his hand although he had said he could
not see what it was. They had proceeded back to Simbarashe's house
who had then suggested that the two brothers go back home but they
had refused, being too afraid to do so.
He
told the court that they were always running away from home because
of their parent's altercations. When Simbarashe refused to
accompany them again, they had proceeded to go and wake up a Mrs
Chirombo. She had told them to go and sleep with her son and that
they could go home in the morning.
In
the small hours of the morning, they had woken up to go home. On
their way there they had been met by their younger five year old
sibling whom he instructed to ask for fire to light the room. The
witness had proceeded to his mother's room and had observed her
footsteps at the door. He had called out her name. There had been a
deathly silence. He had immediately gone to call a woman called Mai
Misheck (Dainah Matyora) and had alerted her that his mother was not
answering to his calls. She had brought a torch with her as it was
still dark and the boys had followed closely behind her. She had gone
in and had immediately seen blood on the deceased's head and had
started crying. She had immediately sent them to call one Chijoto who
had then brought the police.
In
cross examination, he told the court that he had heard his father
telling his mother to sit down. He had also heard her cry out that
she was being injured.
Asked
by the court to clarify the nature of altercations his parents always
had, he told the court that they would fight over the accused's
failure to provide for the family. Sometimes his mother would go to
his workplace to get food. He further told the court that at one time
they had left home with their mother and the accused had followed
them and assaulted her. On another occasion, the accused had rolled
up some tobacco using their exercise books and he had beaten their
mother when she reprimanded him. He also confirmed to the court that
there had not been any other adult man at the house that night
besides his father. He had only heard his mother and father.
The
second witness was Simbarashe Chiwara, the neighbour who had come out
to try and assist that night.
He
described how the accused's son had come knocking vigorously on his
door at around 2am whilst calling out that his father was assaulting
his mother. He had immediately woken up and had proceeded to the
house with X's younger brother whilst telling X to go and alert
others. He told the court that he had tried to open the door but it
was locked from inside. They had managed to push it slightly and it
was at that point that the accused had come to the door armed with a
metal bar. He had heard the deceased apparently asking for
forgiveness. The following morning he had been woken up by Mai
Misheck's screams. He had rushed there and had seen the deceased
lying on the ground and beside her was her youngest child - a
toddler. He had observed that the walls were bloodied from the attack
on the deceased.
He
too corroborated the history of violence and said that it was not the
first time that neighbours had been called upon to assist in
resolving a dispute. He told the court that the deceased and the
accused had had disputes about his failure to maintain the family. He
also told the court that the accused had suspicions about wife
infidelity. The accused had moved out about a year earlier. On the
night in question, he too had not seen anyone else at that house
besides the two who were fighting.
The
Defence Case
In
his defence, the accused reiterated the events of the day as captured
in his warned and cautioned statement about going to the clinic for
treatment. However, he elaborated on the defence he had introduced in
his Defence Outline, which departed from his warned and cautioned
statement.
There
had indeed been a misunderstanding with his wife that night after
supper over her refusal to cooperate about going to seek medication
the following day. Angry about it, he had left to go to where he was
now normally staying. He had stopped at a bar to ease his mood. He
had however returned home when he realised that he had forgotten his
clinic cards. He had walked into the house and had seen his wife with
a lover. The two had, according to him, started attacking him. He had
fallen down and his wife had grabbed him by the testicles. He had not
seen the male assailant clearly but had fought both of them. The
assailant had managed to bolt. It was then that he had picked up what
he thought was a stick but was in fact an axe and started assaulting
his wife on what he thought were her shoulders but was in fact her
head, in an endeavour to get her to let go of her grip to his private
parts.
He
told the court that he had previously heard of his wife's
infidelity from the children but had not caught her.
The
Legal Position
The
accused relied on three primary defences for his actions that night.
He relied on self-defence arising from the fact that he was defending
himself from an attack by his wife and her lover. He also relied on
provocation in that he caught his wife with a lover when he abruptly
returned home that night. He also drew on intoxication in that he had
consumed alcohol that night before he returned home to fetch his
clinic cards.
In
terms of section 253 of the Criminal Code [Chapter
9:23]
self-defence
and defence of another can be a complete defence
where an unlawful attack had commenced or was imminent, or, where the
accused believed on reasonable grounds that the unlawful attack had
commenced or was imminent. Other conditions must be fulfilled. The
conduct must be necessary to avert the attack or the accused must
believe as such and that they could not otherwise escape from or
avert the attack. The means used to avert the unlawful attack must be
reasonable in all the circumstances.
Provocation
in so far as it applies to murder is dealt with by section 239 of our
Criminal Code. It can be partial defence to a charge of murder.
Where
an accused did not have the intention to kill when he was provoked,
then he or she will not be convicted of murder but only of culpable
homicide. Where there was an intention to kill, the court has to
decide whether the accused lost his or her self-control and killed
intentionally, in circumstances where even the reasonable person,
faced with that extent of provocation, would also have lost
self-control.
If
the accused lost self-control and a reasonable person would have done
likewise, the accused has a partial defence and will be found guilty
of culpable homicide and not murder. S
v
Nangani
1982 (1) ZLR 150 (S).
However,
as highlighted in S
v
Madalitso Ranchi
HH-155-17 in cases such as this where an accused has murdered his
wife, the partial defence of provocation comes squarely in conflict
with section 52 of the Constitution which is clearly protective of
those who generally experience violence in the hands of private
actors. In other words, violence in the home for whatever reason is
distinctly constitutionally prohibited.
Voluntary
intoxication is governed by section 221(1) of the Criminal Code.
Since
murder is a crime of requiring “proof of intention, knowledge or
realisation of a real risk” in order to negate intention, the
degree of intoxication must be such that the accused did not form the
intention or have the knowledge, or, realise the existence of risk
required.
Where
an accused despite being intoxicated is still able to form and did
form the requisite subjective state of mind, the court may regard his
or her intoxication as mitigatory to the crime charged.
As
to the type of murder, where an accused intends to cause death or
where he foresaw
that the death was substantially certain to occur, then in
terms of section 47(1)(a) of the Criminal Code he is
guilty on the basis of actual intention.
Where
on the other hand an accused does not have actual intention to cause
death, but realises that there is a real risk that death would
result, then such an accused is deemed guilty on the basis of what
used to be referred to as legal intention.
S
v
Mhako 2012
(2) ZLR 73 (H).
Factual
and Legal Analysis
As
regards self-defence, the evidence of the witnesses was important. X,
the son who gave evidence, was very clear that there was no other
adult person that night besides his parents when the violence
occurred. The persons in the house that night were the witness's
parents, himself and three other siblings. The fourth sibling was
staying with his maternal grandmother at her rural home.
The
accused also did not mention that he had been defending himself from
anyone when he gave his warned and cautioned statement. If this had
been the case, the gist of his lengthy statement would have been on
this precipitating factor as the material cause of the violence. The
fact that the door was locked from inside does not corroborate the
evidence of the accused that there was a man in the house that night.
We do not believe his version that he left the house at all that
night and that on his return to pick forgotten items he had then
stumbled on a lover who engaged him in battle.
His
added motive which he presented only at the trial being that he acted
in self-defence against an assault by his wife and her lover, was
clearly an afterthought.
It
was far from being clear how the lover was said to have gotten out of
the house that night since the house was locked from inside. The
accused did not mention re-bolting the door at any point –
something he forgot to do because he was making up his version as the
trial unfolded.
The
only person armed that night was the accused.
His
explanation that he omitted to mention the fact of the lover in his
warned and cautioned statement because he was afraid to contradict
what the police had told him to say, is simply unbelievable.
There
was no allegation from him that the confirmation procedure had not
been properly followed. In fact he admitted that when his statement
was confirmed he was asked whether he was making the statement freely
and voluntarily and that he told the court that it indeed was a
freely made statement.
His
defence that his wife was also squeezing his testicles is equally
unconvincing.
His
hands were free enough to get hold of an axe and then a metal bar and
he could just as easily have used them to loosen her grip.
In
any event this version of events was again made up as the trial
unfolded.
In
his warned statement he had claimed that she had held him by the
throat. We are in agreement with the State that the defence of
self-defence as a whole is merely calculated to send the court on a
wild goose chase. He was clearly in charge that night blaming his
wife as a vector of disease and seemingly oblivious to the
contradictions in his own statements that he was chaste. How else did
he discover his purported inability to sleep with women unless he had
tried to sleep with droves of them?
By
shifting blame he merely hoped to get away from the consequences of
his actions. It is easy for the accused to spin a version of events
designed to ensure that the deceased was at fault for what happened
to her. Yet, as courts know only too well, there are always two sides
to a story.
The
accused's narrative about what happened that night was from the
onset an incomplete one as the victim was dead. It was therefore a
narrative told only by the accused as regards the causes behind the
fight that day. This story that he found her with a man appears to be
simply a continuation of his assault and vilification of her even in
her grave. As if mutilating her body was not enough, the accused
simply resorted to mutilating her honour from a conviction, most
likely from months of prison talk among inmates, that an explanation
that he acted in self-defence would exonerate him.
The
defence of self defence against an attack by a phantom boyfriend is a
fantasy of his imagination and cannot succeed.
His
defence of intoxication was also not raised in his warned and
cautioned statement and neither did it emerge in his Defence Outline.
It was equally also an afterthought.
If
he had indeed left home and on his way to where he was staying and
had stopped by to purchase some alcohol, this would have been a
fairly straight forward piece of evidence to have corroborated.
But
even assuming that he had drunk any liquor on that day, there was no
evidence led to convince this court that he did not have the
requisite state of mind when he committed the offence. The onus is on
the accused to demonstrate that his intoxication rendered him
incapable of forming the requisite intention to murder.
The
act of provocation which he alluded to in his detailed warned and
cautioned statement was his wife's refusal to go for treatment for
the sexually transmitted disease.
He
could have gone himself for treatment so this was clearly no reason
to kill. Sexually transmitted diseases are a common occurrence and
people generally do not go killing each other.
What
emerged from his son's evidence and what is crucial to
understanding the accused's action is that he had a history of
perpetrating domestic violence. This reflects his choice of dispute
resolution as something he was accustomed to. The evidence led spoke
to various forms of abusive behaviour that characterised the home
life of the accused's relationship with the deceased.
An
increasing number of cases brought before the courts reveal that far
too frequently the bedroom has become a deadly environment for women
as a result of men's violent outbursts in the resolution of
disputes.
Women
have been clobbered, booted, strangled, stabbed, or slashed to death
by their spouse in the confines of the bedroom, all the while by men
who would have the courts believe that but for their wife's
sluttish conduct, their behaviour was out of the ordinary.
See
cases such as S
v
Ranchi
(supra);
S
v
Karadzangare HH794/16;
S v
Ndachengedzwa
HH45-16.
These
cases reveal the depth of a societal problem of violence where
violence in the home has become an all too frequent killer. As often
happens where there is a cycle of domestic violence, situations
rarely get better but get worse. This time, as the facts show, the
accused had erupted into a deadly rage.
In
this instance, the accused's intention was manifest given that
there was an attempt by his sons to get help. A neighbour came and
was chased away with a metal bar. This evidence was not challenged
when the neighbour gave his evidence about what had occurred that
night when he got to the scene.
If
the accused had not intended to kill his wife, he would not have
resisted attempts to stop him. Instead, he had chased the witnesses
away and threatened those who came to assist with a metal object.
The
savagery of his furious attack is significant in that it is captured
in his own words in his warned and cautioned statement. He had hacked
her to death repeatedly without count and most probably even after he
had inflicted enough blows to kill her given his own description of
the various instruments he had used that were within his reach. He
had also aimed them at the head, a very delicate part of the human
body. His statement that he had aimed at the shoulders is simply a
lie and even that would have been deadly in itself. He had meted out
many blows showing his determination and perseverance to ensure that
he inflicted maximum damage. He said himself he had never seen so
much blood.
The
court is satisfied that he had every intention to kill.
Suffice
to mention that this case is not just about the murder of the spouse
in a vacuum. It is about an intimate murder in the context of gender
based violence against women as much as it is a heart wrenching case
of how such violence in the home impacts families especially children
when left unchecked.
The
children were exposed to gender based violence and ultimately their
mother's death as result of violence in the home.
No
key players should ever take such violence lightly on account on it
being “domestic” be it community members or State actors
encompassing the police, the prosecutors or the court itself.
The
core obligations of State parties, in particular under CEDAW, are
well articulated. They are to respect, protect and fulfil women's
rights to non-discrimination and the enjoyment of de
jure and de
facto equality.
One
wonders if the outcome of events that day would have been different
if the police had reacted differently to their protective duty when
she made her report earlier that day instead of simply telling her to
return on Monday.
Such
attitudes of procrastination, whether influenced by tradition,
culture, or religion or economic constraints reflect a poor
implementation of domestic violence legislation contrary to
recommendations and the guidelines to State parties that have
implemented CEDAW. Inaction further contributes to a violation of a
litany of rights that are crucial for women to enjoy a life free from
gender based violence. As observed in paragraph 15 of General
Recommendation No.35 on gender-based violence against women, updating
General Recommendation No.19:
“Women's
right to a life free from gender-based violence is indivisible from
and interdependent with other human rights, including the right to
life, health, liberty and security of the person, the right to
equality and equal protection within the family, freedom from
torture, cruel, inhumane or degrading treatment, freedom of
expression, movement, participation, assembly and association.”
See
section 48 of our Constitution
on the right to life; section 49 on the right to liberty; section 51
on the right to human dignity; section 52 on the right to personal
security; section 53 on freedom from torture; section 56 on equality
and non-discrimination; and section 58 on freedom of association and
assembly.
One
wonders too if more members of the community had come out that night,
especially men, if that could have made a difference.
The
accused did not care about the impact of his actions. He had not been
deterred at all in his brutal attack by the presence of four of his
children in the house that day. They are the ones who have been
tragically left to deal with the aftermath of violence in the home
when all around seemingly took a softly, softly, approach to it.
Those children who were in the house and those who returned to their
mother's bloodied body with her 2 and a half year old next to her,
will forever have to live with these haunting memories of the loss of
their mother at the hands of their father. The five year old who had
to witness all this in the room that day can only be but a broken
child. These are not memories a father should be bestowing on his
children.
Experts
tell us that the psychological scars will be with them forever, not
just from the severity of the final act against their mother, but
from having lived a life of exposure to domestic violence and years
of witnessing brutality.
“Trauma
caused by witnessing abuse between parents can manifest itself in the
child through a number of symptoms. These symptoms range from
withdrawal and inattention to suicidal tendencies. The problems that
a child develops from witnessing abuse will often plague the child
for the rest of her life. Yet most courts refuse to classify the
trauma or the enduring symptoms as child abuse. To protect these
children, courts should change their view and consider the specific
effects that witnessing abuse has on a child”.
And
further:
“The
child begins to associate violence with dispute resolution. Every
time the child witnesses a violent episode, it reinforces the child's
belief that violence solves disagreements. Children who grow up
witnessing spousal abuse have a greater chance of becoming an abuser
than children from non-violent homes.”
These
children will no doubt require counselling to help them deal with
their traumatic experiences. This is particularly so with the two
older boys who went to seek help who will need assistance so that
they do not live thinking that they could have prevented their
mother's death.
For
the eldest son, having had to re-live the experiences of that day
through testifying in court will no doubt have re-traumatised him.
Constitutionally
children are entitled to adequate protection by the courts, and in
particular the High Court as their upper guardian. See section 81(3)
of the Constitution. As such, and as part of that mandate to protect,
this matter is therefore brought to the attention of the Director of
Social Welfare to render the necessary psychological and other
assistance to the children who are now staying in Wedza, Musengezi,
Chaza Village with their grandmother in the event that none has been
rendered.
Verdict:
The
accused is found guilty of murder with actual intent in terms of
section 47(1)(a) of the Criminal Code.
Sentence
In
mitigation the accused is said to be a first offender. He has,
however, been found guilty of murder with actual intent – a very
serious offence.
Whilst
he has spent a year in custody, this is barely of consequence in this
instance given that he was found guilty of murder with actual intent
under section 47(1)(a) which attracts strict punishment including a
life sentence or the capital sentence in some instances.
In
aggravation, the full impact of this murder on a wider family scale
has been addressed and is indeed to be considered in arriving at an
appropriate sentence. Whilst it is argued that he is a family man it
cannot be said that he is any sort of role model for his boys other
than a negative one. It also cannot be argued that his family will
suffer as a result of lengthy incarceration when he was not looking
after the children.
Section
47(2)(c) of the Criminal Code provides that in arriving at an
appropriate sentence for murder, it shall be taken as an aggravating
circumstance if:
“the
murder was preceded or accompanied by physical torture or mutilation
inflicted by the accused on the victim.”
That
gender based violence may amount to torture or cruel, inhuman or
degrading treatment in circumstances of domestic violence is clearly
addressed in paragraph 16 of the General Recommendations to State
Parties that I have alluded to above. Moreover, our own Constitution
in section 53 guarantees freedom from torture or cruel and degrading
treatment or punishment from State actors as well as private
individuals. This no doubt includes freedom from torture resulting
from gender based violence since official torture and gender based
torture, though each unique in its egregiousness as has been argued,
are ultimately said to share commonalities in terms of process,
purpose, and consequences.
Factually,
there is no doubt that the deceased was subjected to cruel, unusual
and degrading treatment. The fact that she was heard to be asking for
forgiveness was simply an indication that she could bear the pain no
more. She would have said anything to stop the physical torture as
she was being hacked and mutilated.
Indeed
as the State rightly pointed out as aggravating, she died an
extremely painful death. Throughout the trial the accused showed
absolutely no remorse for his actions. A lengthy custodial sentence
is called for to enable him to reflect on the impact of his actions
for which at present he shows absolutely no remorse.
Accordingly,
the accused is sentenced to 35 years imprisonment.
Prosecutor
General's Office,
State's legal practitioners
Gambe
& partners legal practitioners,
accused's legal practitioners
1.
Constitution of Zimbabwe Amendment (No.20) 2013
2.
Derek J. Timm, Mommy,
Daddy, Please Stop Fighting: A Legal Analysis of How Witnessing
Spousal Abuse Harms a Child,
2 U.C. Davis J. Juv. L. & Pol'y 29 (1997)
In
support of counselling for such children see also, Laurel A. Kent,
Addressing
the Impact of Domestic Violence on Children: Alternatives to Laws
Criminalizing the Commission of Domestic Violence in the Presence of
a Child,
2001 Wis. L. Rev. 1337 (2001)
3.
See Rhonda Copelon., Intimate Terror: Understanding Domestic Violence
as Torture in R Cook (ed) Human Rights of Women: National and
International Perspectives (Philadelphia University of Pennsylvania
Press) 1994
