Criminal
Trial
MWAYERA
J:
Precious
human life was unnecessarily lost in a horrific manner, in a domestic
violence related crime of passion.
The
accused pleaded not guilty to a charge of murder as defined in
section 47(1)(a) or (b) of the Criminal Law (Codification and Reform)
Act [Chapter
9:23].
The
allegations levelled against him being that on 9 December 2014 at
Inyati Mine Compound the accused unlawfully and intentionally caused
the death of Tendai Mufaranyuri by striking her with a hoe once on
the head and burnt the body with fire, with intent to kill her or
realising that there was a real risk or possibility that his conduct
might cause death and continued to engage in that conduct despite the
risk or possibility resulting in injury, from which Tendai
Mufaranyuri died.
The
brief facts forming the basis of the allegations are that on the
fateful day the accused person had an altercation with the deceased,
his live in girlfriend for a period of about 2 years.
On
the fateful day the accused struck the deceased with a hoe on the
head as the deceased lay on the bed. The accused set the bedroom
ablaze and he fled to the mountains where he stayed in a cave from 9
December 2014 until 2 October 2017 when he was arrested for the
murder allegations.
The
accused's defence was basically that upon his return from work the
deceased insulted him accusing him of being stupid, surviving on
piece jobs and thus his future was bleak.
The
accused was also insulted by the deceased who labelled his mother a
witch and was further insulted by the deceased's refusal to be
intimate with him.
The
accused went away after the insults so as to cool off.
However,
the insults kept hounding him to the extent of causing him to abscond
and leave his guard duty at his place of employment. According to the
accused, upon return he requested the deceased to be intimate with
him and she rebuffed him repeating the earlier insults.
The
accused in a fit of anger then armed himself with a metal hoe handle
and blade and struck the deceased on the head.
The
accused observed that the deceased died instantly as a result of the
blow and in panic mode decided to take away his own life and thus
left a suicide note at the homestead.
He
further, in a bid to conceal evidence set alight the bedroom house in
which the deceased lay.
Upon
reflecting while in the mountains, the accused decided not to take
his life and was eventually arrested about 3 years later.
The
accused in his defence sought to raise and rely on the defence of
provocation and pointed out that he was negligent and had no
intention to kill the deceased proffering a plea of guilty to
culpable homicide.
The
State did not accept such a plea and thus the trial proceeded.
The
issues that fall for determination are:
(1)
Whether or not the accused had the requisite intention to kill
deceased.
(2)
Whether nor not the alleged insults and denial to sexual intimacy
afforded the accused the defence of provocation thus occasioning a
defence to the charge of murder reducing it to culpable homicide.
The
State adduced evidence from 15 witnesses, 3 of whom gave oral
evidence and 12 of
whose evidence was not contentious and on common cause aspects was
formerly admitted as evidence in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter
9:07].
Post
Mortem examination by Dr Roberto Trecu and Dr Ivian Betoncourt's
affidavit of evidence was tendered as exh 1 by consent.
The
doctors observed the remains and concluded that the cause of death
was carbonisation. The doctors further observed that there was head
trauma occasioned on the head.
Further
tendered as exh 2 in evidence was accused's confirmed warned and
cautioned statement.
The
statement was basically to the effect that the accused assaulted the
deceased following insults on his person and refusal by the deceased
to be intimate with him.
The
sketch plan depicting the lay out of the scene of crime as indicated
by the witness Tamari Mufaranyuri and as observed by the recording
detail one Detective Assistant Inspector Zifungo was also produced.
The
witness Tamari Mufuranyuri testified at the age of 15. At the time of
the alleged offence she was 11.
The
witness regarded the accused as a father as he was her mother's
boyfriend. She pointed out that all along the accused and deceased
would get along well but as from 1-8 December 2014 the two had a
heated argument in which the deceased was accusing the accused of
squandering his salary.
On
the fateful day the witness went to put up for the night at the
mother's friend's house. In the morning she went back to her
mother's homestead and as routine swept the campus. It was during
that morning that the cousin Leeroy Munongwa who had got inside to
get some body lotion or oil alerted her that the bedroom was burnt.
The
witness and Leeroy upon checking and not finding the deceased alerted
a neighbour Tawanda Chieza whose evidence was admitted.
The
witness then entered the bedroom in which everything was burnt and
the charred remains of the deceased were recovered from the position
where the bed lay before being set ablaze. The witness's evidence
was straight forward. She did not witness the fraca but observed the
bedroom was burnt. She later learnt the charred remains were the body
of her mother. The witness gave her evidence well.
The
other witness who gave oral evidence, Kelvin Taurai Temberere's
evidence was basically that on the day in question he met the accused
with whom they exchanged greetings. The accused advised him that he
wanted to shift and move from staying with the deceased with whom he
cohabitated. The witness did not ascertain why. According to the
witness the accused and deceased were co-habiting and this was common
knowledge in the locality. Nothing arises from the witness's
straight forward testimony.
Dzokai
Mafaranyuri a sister to the deceased confirmed that the accused and
deceased cohabitated for about 2 years. The witness confirmed what
the other witnesses, stated that the two had cordial relationship.
She however, pointed out that sometime before the demise of the
deceased the couple was having problems about issues of salary.
This
tallied with Tamari Mafaranyuri's evidence that on the day in
question she had heard the mother complain about accused squandering
his salary.
Dzokai
Mafaranyuri told the court that the issue of the salary was a source
of argument as the accused would go to work but his father would
collect his salary.
The
witness did not witness the misunderstanding which culminated in the
death of the deceased.
The
accused maintained he was insulted and denied sexual intimacy and
that he assaulted the deceased negligently causing her death.
From
the totality of the evidence it is common cause that the accused and
deceased cohabitated for a period of about 2 years prior to the
fateful day. Further, it is not in dispute that the accused returned
home from his duty post on the night in question. It is also apparent
the accused had a misunderstanding with the deceased which culminated
in him striking the deceased on the head and also burning the
deceased as he set the bedroom on fire. It is not in dispute that the
accused left a purported suicide note to the effect that he had
killed the deceased and would proceed to take his own life.
It
is also common cause that the accused set on fire the bedroom in
which the deceased was. Further, it is common cause the accused did
not commit suicide as he sought sanctuary in the mountains until he
was arrested about 3 years later.
It
is not in dispute that the deceased died as a result of carbonisation
and that the deceased had sustained head injuries.
Also
common cause is the fact that accused caused the demise of the
deceased.
What
the court is to consider is the degree of liability given the defence
of provocation raised by the accused.
The
defence of provocation raised by the accused is provided for in
section 239(a)(1) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23]
which states:
“If,
after being provoked, a person does or omits to do anything resulting
in the death of a person which would be on essential elements of the
crime of murder if done or omitted as the case may be, with the
intention or realisation referred to in section forty-seven, the
person shall be guilty of culpable homicide if, as a result of
provocation;
(a)
he or she does not have the intention or realisation referred to in
section forty-seven;
(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 reasonable person in his to her
position and circumstances lose his or her self control.
(2)
For avoidance of doubt, it is declared that if a court finds that a
person accused of murder was provoked but that;
(a)
he or she did have the intention or realisation referred to in
section forty-seven; or
(b)
the provocation was not sufficient to make a reasonable person in the
accused's position and circumstances lose his or her self-control;
the accused shall not be entitled to a partial defence in terms of
subsection (1) but the court may regard the provocation as mitigatory
as provided for in section two hundred and thirty eight.”
In
the circumstances of this case the accused alleges he was insulted by
the deceased who labelled him “stupid, surviving on piece jobs, and
that his future was bleak. Further that his mother was a witch.”
The
deceased further refused to have sexual intercourse with the accused.
According
to the accused this angered him but he managed to temporarily
restrain himself and went away to cool off.
While
at work at night, the accused failed to cool off as the insults
hounded him and he decided to go back to clarify and resolve their
impasse.
Upon
requesting to be intimate with the deceased he was rebuffed and
insults were repeated.
The
accused proceeded to the dining from where he took the metal hoe and
returned to the bedroom whereupon he struck the deceased on the head.
After
striking he wrote a suicide note and then set ablaze the bedroom in
which the struck deceased was lying.
The
question is simply whether or not the alleged insults and reaction
vitiate intention or phrased differently did the insults occasion
loss of self-control so as to negate any formulation of intention.
The
remarks by MUSAKWA J with the concurrence of MAFUSIRE J in S
v Kazembe
HH15/14 go a long way in defining when provocation can be sustained
as a partial defence to murder.
In
Kazembe case, it was stated:
“A
provoked man loses the power of self control… Provocation may go
beyond a man's endurance. It may render a man unable to form an
intention to kill… The provocation must be such as to have actually
caused the accused to have lost his self control though not
necessarily his capacity to intend to kill. The provocation must also
have been such that in the circumstances an ordinary man would have
lost his self control and acted in such a manner.”
It
is clear that if a person is capable of some self control he is
capable of forming the requisite intention and liable for his
actions. See S v Stephen 1992 (1) ZLR 115; S
v Musina
2010 (2) ZLR 498; and also S
v James Chishakwe
HH17/19.
In
this case, the accused after being insulted went away to cool off and
then came back to resolve the impase.
The
same insults were hailed at him and there is no basis why he would
have snapped and lost it given the repeated insults.
In
fact going by his reaction he thought of getting a stick with which
to assault the deceased and then proceeded to the dining room.
He
made a choice between a stick and a hoe. He retrieved a hoe with
which to assault the deceased.
He
then came back struck her head, wrote a suicide note and then set on
fire the bedroom in which the immobilised now deceased was.
Evidence
adduced showed the accused after the insults also packed his clothes
and other belongings and took them out of the campus before setting
the bedroom on fire.
He
had time to plan and pack his belongings to ensure they would not be
burnt by the fire. Such sequence of events is not consistent with
instantaneous and spontaneous reaction to provocation.
The
accused had time to ponder over the insults and rejection of intimacy
and sought to punish the deceased for that.
In
dismissing the defence of provocation, MATHONSI J in S
v Best Sibanda
139/18 made it clear that in circumstances were provocation is not
sufficient to make a reasonable person lose self control then the
defence is not available. He remarked;
“….
provocation, by its very nature connotes instantaneous and
spontaneous reaction to phenomena in which the actor does not have
any opportunity to formulate a strategy but acts in the spur of the
moment having lost self control in response to the actions of
another.”
In
the present case the accused had time to ponder over insults and
planned to come back at night in order to discuss the issue. Upon
seeing deceased who denied to be intimate with him and repeated the
same insults he actually went out to get a weapon with which to
assault. He made a choice between a metal hoe and stick and opted for
a metal hoe. The accused packed his belongings then struck the head
and lit a fire leaving the deceased to burn while he fled after
having written a purported suicidal note.
It
is apparent the accused caused the death of the deceased.
The
court is only to decide whether or not the accused committed the
offence of murder with actual intention or legal constructive
intention.
Actual
intention was described fully and with clarity in S
v Mungwanda
2002 (1) ZLR 574. The court held that for a court to convict an
accused of murder with actual intention the State must prove beyond
reasonable doubt that:
(a)
the accused desired to bring about death of his victim and succeeded
in completing that purpose; or
(b)
while pursuing another objective, the accused foresaw the death of
his victim as a substantially certain result of his activity and
proceeded regardless.
In
other words the question is whether or not when the accused engaged
in the conduct complained of he had the requisite intention to kill
as contemplated in section 47(1)(a). See also S
v Lloyd Mukukuzi
HH577/17.
The
sequence of events in
casu
depict clear formulation of intention in circumstances were a
reasonable person could not have lost self-control. The defence of
provocation raised by the accused cannot be sustained in the
circumstances.
The
accused in this case while bent on torturing the deceased for denying
him sexual intimacy, struck the deceased in the head and set on fire
the bedroom in which she was, in circumstances where the accused
foresaw that the deceased's death was substantially certain. The
hacking with a metal hoe and setting on fire connotes mens
rea
of actual intention. See
S v Mema
HB143/13.
According
the accused is found guilty of murder with actual intention as
defined in section 47(1)(a) of the Criminal Law (Codification and
Reform) Act [Chapter
9:23].
Sentence
In
coming up with an appropriate sentence I have considered all
mitigatory and aggravatory factors submitted by Mrs Zviuya
and
Mr Chingwinyiso
respectively.
We
have also taken note of the standard sentencing principle which
places duty on the court when passing sentence to seek to match the
offence to the offender while at the same time ensuring the society
does not lose confidence in the justice delivery system.
The
accused is a first offender with some family responsibilities. He
accepted liability although not to the degree proved by the State. He
acknowledged assaulting and setting the deceased on fire was wrong.
Further in mitigatory is the fact that accused has been in custody
for over a year awaiting the finalisation of the offence.
That
offence was committed in 2014 and it took 3 years for the accused to
be apprehended as he fled from justice and hibernated in a cave is
aggravation.
As
correctly observed by the State counsel, the circumstances
surrounding the arrest of the accused are aggravatory. The accused
resisted arrest and fought to avoid being brought to terms with the
law.
The
accused sought to conceal the heinous murder by burning the deceased
and also inscribing a stone to create the impression that he was dead
and had been buried when he inscribed a stone “Lameck's grave”.
His
arrest was just fortuitous given the accused had left a suicidal
note.
Further
in aggravation is the fact that the accused killed his 2 year old
live in girlfriend for no reason at all.
The
circumstances are clearly an indication of a cruel man bend on
torturing a woman “in a clear move of if I cannot have you no one
else can”.
The
accused in a dehumanising manner sought to punish the deceased for
exercising the right to refusal of sexual intimacy.
The
alleged insults and denial of intimacy did not justify the callous
and brutal murder of a mother at a tender age. The deceased lost her
life at the merciless hands of the accused and such precious human
life cannot be replaced.
The
courts have to express displeasure at inhuman and degrading treatment
resulting in loss of life. See State
v Robert Tevedzayi
HH206/18.
Also
see S
v Chipo Madondo
HMA24/17 wherein MAWADZE J commenting on the evils of domestic
violence between spouses occasioning loss of life made these
pertinent remarks:
“This
matter brings to fore the scourge of domestic violence which has
afflicted our society leading to ghastly consequences which include
loss of life. It is saddening to note that spouses are meeting their
demise at the hands of those who have taken vows to love them
forever.”
In
this case the accused and deceased lived in as husband and wife for 2
years such that one would have expected love and care and not
violence to prevail. The courts have to move in and signal that
domestic violence is not acceptable. Moreso given the loss of life
occasioned in this case.
The
right to life is clearly enshrined in our Constitution, no one has a
right to take away the God given constitutionally provided right. The
courts have to protect the sanctity of human life by passing
appropriate sentences.
The
sentence should not only deter accused but like-minded people. The
message has to be sent loud and clear that courts do not condone
domestic violence and clearly resolving disputes by violence has no
place in a civilised and progressive society like ours.
The
accused in a heartless manner struck the deceased with a metal hoe
and had the audacity to set her on fire. Such conduct has to be
visited with appropriate punishment.
The
moral blameworthiness of the accused is high.
He
stands convicted of murder with actual intention in circumstances
were such offence could have been avoided. The society looks up to
husband and wife or lovers to exercise duty of care and protection of
the other and not brutally taking away the life of the other.
The
legislature in enacting the penalty provision which provides for
capital punishment, life imprisonment and imprisonment sought to
express that murder is viewed as a serious offence. In the present
case upon considering all mitigatory and aggravatory circumstances
the offence is deserving of a lengthy custodial term. You are
sentenced as follows:
25
years imprisonment.
National
Prosecuting Authority,
State's legal practitioners
Legal
Resources Foundation Mutare,
accused's legal practitioners
