Findings of Fact re: Assessment of Evidence, Inferences, the Cardinal Rule of Logic and Evidential Concessions

HMT48-19 : THE STATE vs VICTOR DINGA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

In this case, precious human life was viciously lost in circumstances where love for money took over respect of the sanctity of human life.

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].

It is alleged by the State, that, on 29 September 2018, in the morning, the accused invited the deceased to accompany him to Martin Forest for purposes of carrying planks for a fee. Upon arrival at Martin Forest, the accused suddenly pulled out a machete which was hidden in his trousers and struck the deceased on the neck and above the left ear with an intention to kill the deceased or with the realisation that there was a real risk or possibility that his conduct might cause death, and, despite the realization and risk, proceeded to strike the deceased thereby unlawfully and intentionally killing the deceased.

The accused sought to rely on the provisions of section 263 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused's defence was essentially, that, he was forced by circumstances to kill the deceased in order to raise money to sustain himself and his family.

The State adduced evidence from nine (9) witnesses as follows:

Aaron Mashava gave oral evidence.

The witness, who is married to the accused's sister, recounted how the accused approached him at his shop on the night in question. He told the court that the accused requested him to place a small bag in the refrigerator for him. Further, that, the accused requested him not to open the bag. Upon inquiry, the accused revealed to him that the bag contained human body parts. The witness did not take lightly to this revelation thus he requested the accused to leave. He refused to assist the accused who departed from his shop carrying his bag with him.

The witness closed his shop shortly after the accused had left and proceeded to inform a church pastor, one Blessing Mushanguri, that the accused had body parts. This led to a chain of reports to the councillor of the ward, one Eddie Njanji, Blessing Murata, a special constabulary, and, finally, to the police investigating officer, Free Jarati, and other details who assisted, namely, Macdonald Chiwandamira and Ronald Bank Mariko.

After the initial report was made, follow ups were made with the accused at his homestead and the bag with human body parts was recovered from a disused toilet through indications from the accused.

The witness, Aaron Mashava's evidence was very straight forward as he portrayed that he was shocked by the accused's revelation. Further, he declined to have any association with the accused's dealings. It emanated from the witness, the fact that he reported and caused the accused's arrest is the reason why the accused, in his warned and cautioned statement, sought to implicate the witness.

The accused confirmed this in his evidence when the stated, that, he, in his warned and cautioned statement, sought to implicate the witness because he was bitter over the report and arrest.

The witness, Aaron Mashava, gave his evidence well and in a straight forward manner.

He revealed that the accused used to be employed at a company called Golly in Mutare and that, at some stage, he worked with the accused leaving him guarding his car while the witness proceeded to wholesalers to order goods for his shop.

At the time of the alleged commission of the offence, the accused was no longer assisting him in guarding his car as they had only worked for about a month and he realized the accused was not responsible enough as he would leave the car unattended proceeding to smoke.

He enjoyed a good relationship with the accused as brothers in law.

All the other State witnesses evidence was formerly admitted as appears on the summary of the State case.

The evidence was on common cause aspects after the event when Aaron Mashava, in the company of the other State witnesses, swiftly approached the accused and the police recovered the body parts.

The accused subsequently led the police to the scene of crime from which the remains of the deceased, Cephas Murarenyama, was recovered.

The remains were taken for post-mortem and Doctor T. Njenjera compiled a post mortem report which was tendered as exhibit 1 by consent.

The doctor observed that body parts were missing and he observed some parts in a separate bag. These include the eyes, the heart, the penis, and testicles. According to the doctor's report, the upper limp was missing. The doctor also observed that the chest cavity was open. The skull was fractured with exploded brain tissue.

The doctor concluded, that, the cause of death was severe head injury and exsanguination.

Photographs depicting the body of the deceased, with some body parts missing, were also tendered in evidence as exhibit 4. The harvested body parts photographs were also produced as exhibit 4 in the photo album.

Also adduced in evidence, as exhibit 2, is the accused's confirmed warned and cautioned statement, which, in essence, outlined how the deceased lost his life and some body parts were harvested.

The machete and certificate of weight were tendered as exhibit 3 and 3(a), by consent, with the certificate of weight revealing the standard machete weighing 0,56kg and measuring 53cm in length.

The sketch plan, showing the general layout of the scene of the crime, as per indications from the accused and witnesses to the police details, was also produced as exhibit 5 by consent.

The accused, in turn, maintained, that, he committed the offence so as to raise money for a better living for himself and his family.

He claimed that he had come across information to the effect, that, certain body parts, like the ones he harvested, were tradeable in South Africa and that he would raise an amount of money to the tune of US$50,000.

He, during his defence case, made it clear he had not been sent or influenced by his brother in law, Aaron Mashava, the State witness, but was eager to proceed to South Africa to sell body parts and then come back and buy a house in town and also a car and have a good living.

He stressed that he implicated the State witness, in his warned and cautioned statement, because of anger that had the witness kept the bag in the refrigerator, and not alerted the police, he would have accomplished his mission.

Most of the accused's evidence was on common cause aspects after the beans were spilt that he had body parts. He then led the police to the scene of the crime.

The accused and the deceased were alone when the deceased met with his death and body parts were harvested.

According to the accused, he approached the deceased and solicited for help in carrying planks for a fee of $5. The deceased was in the habit of doing menial jobs for other villagers in the community. The deceased agreed to go with the accused, and, when they were in the middle of the forest, the unsuspecting deceased was hacked by the accused and he died instantly.

During the defence case, the accused outlined how he concealed the machete in his trousers and only took it out when they were in a secluded place.

Immediately upon the death of the deceased, the accused then removed the body parts of his choice for the intended trade in South Africa for a fee of up to US$50,000.

The puzzle of how the deceased lost his life was completed by the accused when the accused recounted how he struck the deceased and harvested body parts. His evidence dovetailed with the medical evidence and photographs produced in court.

The accused's version was clear, given Aaron Mashava had let the cat out of the bag by announcing that the accused had human body parts. There was no way out after being caught red-handed with the human body parts.

The deceased lost a lot of blood and this could have been as a result of the incisions made during the time the accused harvested the body parts. The draining of blood, to levels that could not sustain life, gave in to exsanguination as a cause of death.

Further, the accused stated he struck the deceased on the neck and head causing head injury, again, causing loss of blood and occasioning death of the deceased.

There is clear evidence that body parts were recovered from the accused and he led to the recovery of the rest of the body.

The accused recounted events of the day showing his physical involvement in occasioning the death of the deceased.

The question that has to be answered, given the charge of murder which he faces, is: whether or not, in the face of the defence of necessity raised, the essential elements which constitute the offence of murder can be sustained.

Murder consist of both the actus reas and the mens rea.

The defence raised by the accused is provided for in section 263 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It provides that:

“(1) Subject to this Part, the fact that it was necessary for a person accused of a crime to do or omit to do anything that is an essential element of the crime in order to avoid harm to himself or herself or to another person shall be a complete defence to the charge if -

(a) The harm which he or she sought to avoid would have resulted in -

(i) Death or serious bodily injury to himself or herself or to another person; or

(ii) Considerable financial or proprietary loss to himself or herself; and

(b) He or she believed, on reasonable grounds, that, the harm referred to in paragraph (a) had started to occur or was imminent; and

(c) The harm referred to in paragraph (a) did not arise through his or her own fault; and

(d) He or she believed, on reasonable grounds, that, his or her conduct was necessary to avoid the harm referred to in paragraph (a) and that there was no other feasible way of avoiding it; and

(e) By his or her conduct, he or she did no more harm than was reasonably necessary to avoid the harm referred to in paragraph (a), and the harm he or she did was not disproportionate to the harm referred to in paragraph (a).

(2) In determining whether harm would cause considerable financial or proprietary loss to a person for the purposes of subparagraph (ii) of paragraph (a) of subsection (1), a court shall have regard to the financial or proprietary resources of the person concerned.”

Further, section 264 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] goes on to give further requirements to be met for the defence of necessity to be a complete defence to a person accused of murder.

It is apparent, from the reading of section 264 of the Criminal Law (Codification and Reform) Act, that, the harm that an accused seeking to rely on defence of necessity ought to be one which would have resulted in his or her death or that of family, and that he or she had no prior warning of the imminent harm and therefore would not have been able to forestall it.

The defence is akin to the defence of self-defence and is not available by mere asking but only available if all the requirements outlined by the law are met.

If all requirements are met, and it is evident that more harm than was reasonably necessary was occasioned, then, the accused relying on the defence of necessity should be liable for negligently causing the death of another - culpable homicide.

Provisions of section 265 of the Criminal Law (Codification and Reform) Act (the Criminal Code) are instructive.

The defence, in the present case, sought to rely on provisions of section 265 of the Criminal Law (Codification and Reform) Act and urged the court to hold that the accused was acting in compliance with the defence of necessity but that he just exceeded the limits, and, as such, should be acquitted of murder charges and be held liable for culpable homicide.

It is imperative for one to look at the circumstances of this case and see if indeed the accused struck the deceased in circumstances where liability can be vitiated by lack of intention occasioned by the defence of necessity.

From the accused's version and sequence of events, the accused is a married man. He was staying with his family at his father's homestead and there was no evidence that him and family were under threat of suffocation by lack of the basic necessities food, clothing, and shelter. The accused testified he was staying well and was well provided for. He just desired a better life in an urban area.

The accused and his family were under no attack at all from the deceased or any other members of the community.

A reading of section 264 of the Criminal Law (Codification and Reform) Act (the Criminal Code) does not give room for ambiguous interpretation to extend the defence to cover pursuit of material acquisition.

The defence of necessity, contemplated in sections 263 and 264 of the Criminal Law (Codification and Reform) Act, is a defence that can only be relied on by an accused who would have done the act in a bid to defend himself, or any other person, from an attack or imminent danger which would have resulted in death of the victim.

Killing another for ritual purposes, or furtherance of material acquisition, is certainly not encapsuled in the defence as outlined in sections 263 and 264 of the Criminal Law (Codification and Reform) Act (the Criminal Code): see S v Magoge 1988 (1) ZLR 163 and S v Nicole 1991 (1) ZLR.

The law only allows a person to take reasonable steps to defend himself or another against an unlawful attack, and, in so doing, an attacker, in justifiable circumstances, can be killed: see S v Mabvumbe HH39-16; S v Tafiresu HMA; and S v Mudenda HB66-15.

The accused must show that there was an imminent attack and action taken was reasonable.

There is no room for stretching the defence to situations where, out of greed and desire to be rich overnight, one can seek to hide under the umbrella of hardships and poverty as justifying killing another - let alone a person who has not attacked or have intentions of attacking the accused.

As occurred in this case, the deceased was an unsuspecting individual who agreed to be hired for labour to ferry planks. He met with his death without having attacked or threatened the accused in any manner.

The defence of necessity raised by the accused cannot be sustained in the circumstances and it is not available for the accused. The desire to get rich does not, in any manner, negate the intention of the accused. The accused was not under an attack warranting him to motivate the defence of necessity.

It is apparent, from evidence, that, the accused set out with a motive to get body parts for resale to potential buyers in South Africa. He knew the essential parts and that they were tradeable for US$50,000. The accused then embarked on a mission to scout and get a possible victim, who would not be easily traceable and who would not foil his mission by resistance.

According to the accused's own version, he settled for the deceased, a 60 year old unmarried man who lived on his own as his brothers were far away.

The accused, after statching away the murder weapon, the machete, concealed in his trousers, lured the deceased to go and help him carrying planks for $5. The piece job and fare was not real but just a bid to lure the victim to the secluded and isolated heart of the forest.

While out in the forest, the accused, at the opportune time, struck the unsuspecting victim with the machete, and he died instantly. The accused then ripped out the vital body parts for his mission and left the deceased's remains in the forest.

He took the body parts for refrigeration so as to pursue to fruition his mission.

It was at that stage that his brother in law, upon learning of the gory deeds of the accused, alerted the police.

The chain and sequence of events falls squarely into the circumstances where the accused carefully premeditated and planned on the choice of victim, choice of weapon, and lured the victim to a secluded place for purposes of execution of the carefully thought plan of killing a human being and harvesting essential body parts for the accused's own benefit.

In the case of S v Mungwanda 2002 (1) ZLR 574 and S v Sithole SVC 16/07 the court clearly and ably described forms of intention.

There is actual intention where one sets out with an aim to kill and proceeds to kill, and actual intention when one sets out with a conduct when it is substantially certain that death will occur.

There is also legal intention, the common law constructive intention: see S v Mhako ZLR (2) 73 where one proceeds to cause death with realisation that their conduct has the risk or possibility of causing death.

In this case, the accused had the actual intention to kill.

In face of the glaring clear evidence of careful pre-planning and determination envisaged by the accused in this case, one needs not seek microscopic eyes to discern, that, the accused set out with a motive and desire to kill the deceased in a vicious manner indicative of determination in achieving the set goal - and the accused proceeded to execute his mission.

The accused had both the requisite actus reas and mens rea to kill the deceased.

The accused has no defence to the charge, and, the State has proved the guilt of the accused beyond reasonable doubt.

The accused is accordingly 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].

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

Both accused appeared before the court facing murder allegations as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged, that, on 12 October 2015, at around 0300 hours, and at Chemushowe Business Centre, Chief Chitsunge, Buhera, the two accused persons interchangeably assaulted the now deceased using switches all over the body several times. The deceased sustained serious injuries from which he died.

The body was examined by Doctor Tendayi Mutsvayi who concluded that cause of death was haemathorax (in simple terms, collection of blood between chest walls and lungs due to blunt trauma causing shock to the body).

Both accused pleaded not guilty to the charge.

The first accused denied assaulting the deceased with an intention to kill the latter. He admitted assaulting the deceased while in the company of the second accused and admitted his conduct was negligent and thus proffered a plea of guilty to culpable homicide.

The second accused denied assaulting the deceased although he was at the scene. He blamed Accused 1 for assaulting and occasioning the death of the deceased.

The State adduced the following evidence:

(i) The post-mortem report by Doctor Tendayi Mutsvayi outlining the cause of death, exhibit 1, by consent

(ii) The first accused's confirmed warned and cautioned statement, exhibit 2, by consent;

(iii) The sketch plan of the general layout of the scene, exhibit 3, by consent;

(iv) Certificate of weight of sticks, exhibit 4 and 4(a) and bundle of sticks, exhibit, 5 by consent.

Fanuel Muchengeti gave oral evidence while the rest of the witnesses, namely, Joyce Masunda, Mateya Tawanda Patson, Sophia Dhenya, Lloyd Jonhera, George Chematumba, Timothy Kapesu, Tendayi Mutsvayi and Marazi Liberty's evidence was formerly admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Fanuel Muchengeti was apparently the only eye witness.

His evidence was to the effect, that, he witnessed both the accused assault the deceased with switches - especially at the front of the second accused's shop. The witness, who was an employee of the second accused, told the court, that, he proceeded to raise alarm with the second accused's wife, Joyce Masunda, the second State witness.

According to the witness, Fanuel Muchengeti, the deceased was now lying down when the second accused's wife came and restrained her husband.

The witness also took away the stick which Accused 2 was holding as he restrained further assaults by switches.

The witness told the court, that, the switches used were plucked from nearby trees.

He later heard that the deceased had passed on behind a grinding mill at the same shopping centre.

The assaults were perpetrated in the early morning hours, around 0300 hours, and he learnt of the death around 1000am on the same day.

The witness appeared to have been shocked by the events of the day on question as he appeared to be in a state of fright when he testified on the actual assault and eventual death. The fear, however, did not cloud his evidence as clearly what prompted him to go and call the second accused's wife was the attack on the deceased.

His evidence, in so far as the two accused both assaulted the deceased, tallied with the first accused's version to a great extent.

The witness generally gave his evidence in a straight forward manner. He was economical with detail but was sincere with the court that both the accused assaulted the deceased who was very drunk compared to the two accused persons.

The first accused maintained his plea of guilty to culpable homicide.

He pointed out that Accused 2 alerted him that he suspected the deceased was a thief who wanted to steal from him. He was invited to assist in handling the thief and he responded and assaulted the deceased with switches.

According to the first accused, the second accused also assaulted the deceased with switches tendered as exhibits in court.

The first accused, as outlined in his confirmed warned and cautioned statement, Defence Outline and evidence in chief was consistent in his narration of what transpired on the fateful day.

The first accused, together with Accused 2, suspected that the deceased wanted to enter into the second accused's shop to steal hence they unleashed the assaults on him causing injuries from which the deceased passed on.

The first accused was generally viewed as being genuine with the court given the manner he testified. He was candid with the court.

The second accused was adamant that he did not assault the deceased but that it was the first accused who assaulted the deceased.

He stated that he was, throughout the assault, not involved at all.

Despite this denial, it was clear the second accused, as the shop owner, had more to protect and could not fold his arms on a suspected thief.

In fact, during cross examination by both counsel for the first accused and the State, the second accused was exposed as being economical with the truth. He was exposed as a man bent on exploiting the economically weaker for his own benefit.

He portrayed the first accused as an overzealous, violent person. He sought, unconvincingly, to portray himself as an innocent bystander while at the same time admitting that he suspected that the deceased was a thief.

The second accused was holding a switch when his wife arrived.

He accepted that the sticks produced in court were used to assault the deceased by Accused 1 and that the other three (3) sticks he did not see them being used.

He was exposed as an untruthful witness for clearly he also used switches to assault the deceased.

The sticks he said he did not observe Accused 1 use are sticks he used to assault the deceased.

His answer, that, he did not observe them being used, was a flimsy excuse for not telling the court his role in the assault.

Generally, the second accused fared badly under cross-examination. He presented an unbelievable account of events which exposed him as a stranger to the world of truth.

The denial by Accused 2 was exposed as merely designed to mislead the court.

Moreso, when one considers that the assault of the deceased only stopped after the intervention of Accused 2's wife when she retorted words to the effect, that, the accused should stop so as to avoid inviting an avenging spirit on their family.

The first State witness's evidence was very clear on both the accused's participation in assaulting the deceased and we found no reason why he would falsely incriminate the second accused.

At the close of both the State and defence cases it was clear, that, on the fateful morning at Chemushore Business Centre, Chitsunge, Buhera the deceased succumbed to assault-induced injuries and died.

Both accused persons participated in assaulting the deceased using switches thereby causing serious injuries.

There is apparent evidence that both accused persons are liable for causing injuries from which the deceased died.

The question that has to be determined, given the charge of murder the accused are facing, is as regards the degree of liability.

It is settled, murder consists of both the unlawful and intentional killing of another.

In their closing submissions, the State and defence counsels correctly assessed, that, from the circumstances of this matter, and evidence adduced, the accused persons cannot be said to have set out with an aim to kill the deceased and proceeded to achieve the goal.

Given the nature of sticks used in assaulting the deceased, one cannot deduce that death was substantially certain.

To that extent, therefore, the accused persons cannot be held liable for murder with actual intention.

See S v Lloyd Mukukuzi and Another HH577-17 and also Mungwanda v S SC19-02 on the definition of actual and legal intention.

Having discounted murder with actual intention, the second question is whether or not the State has proved, beyond reasonable doubt, that, the accused unlawfully and with legal intention caused the death of the deceased.

The question is whether the accused subjectively foresaw the possibility of his act causing death and was reckless of such result.

If, from the circumstances, the accused has the dolus eventualis, then, they should be found liable for murder with legal or constructive intention. The legal intention emanating from subjective foresight, just like any other factual issue, may be proved by inference.

In this case, both accused interchangeably struck the deceased severally with switches plucked from nearby trees. The accused unreasonably suspected the deceased, a person they were drinking with, to be a thief. They sought to chastise the suspected thief by assaulting him with switches.

Going by the manner of assault, and the smallness of the switches used, even though the assault was prolonged one cannot infer that the accused foresaw that death would ensue and foresaw that there was a real risk or possibility that death would occur.

In this case, the accused cannot be convicted of murder with legal intention: see S v Mema HB143-13.

It remains a fact that the accused assaulted the deceased occasioning injuries from which he died.

The next question is: would a reasonable person in the circumstances which the accused found themselves in have realized that death may result from their conduct and persisted with that conduct?

If the answer is in the affirmative, then, the accused should be held liable of culpable homicide.

In this case, the accused, severally and interchangeably, assaulted the deceased using sticks indiscriminately. The deceased fell to the ground and was not retaliating in any manner. The assault caused injuries around the pleural cavity occasioning accumulation of blood leading to the fatal results.

Considering the deceased's posture upon being assaulted, would a reasonable person in the circumstances of the accused have realised that death may result from his conduct?

In this case, when the accused persons continuously, for a prolonged period, assaulted the helpless deceased, they were negligent in failing to realize that serious injury or death may result from their conduct.

The facts of this case are indeed similar to the circumstances of the case of State v Gumbo HB19-18.

In State v Gumbo HB19-18 the accused, who used sticks to assault the deceased all over the body, was convicted of culpable homicide.

Clearly, as in this case, the nature of the sticks used cannot be viewed as lethal or life-threatening in the context of death being substantially certain, but, teaming up to assault, several times, a defenceless person is certainly carelessness on the part of the accused.

A reasonable man in the circumstances of the accused would have realised that serious injuries or death may result from their conduct.

The first accused admitted to culpable homicide.

Accordingly, both accused are found not guilty of murder and are found guilty of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act.

HMT13-20 : THE STATE vs OBEY MASAMBU
Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

The accused is charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged, that, on 7 May 2019, and at Musanga Village, Chief Saunyama, Nyanga, the accused unlawfully caused the death of Emmanuel Nyasha Masambu by hitting him several times on the legs and head with a wooden pick-handle, intending to kill him 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 injuries from which the said Emmanuel Nyasha Masambu died.

The accused pleaded not guilty to the charge, and stated, in his Defence Outline, that, there was bad blood between him and the deceased who was his biological young brother.

On 7 May 2019, the accused was in the company of his uncle, Rodney Gwezere, who resides in the same compound with the accused. As the accused was accompanying Rodney Gwezere to the house that he slept in, the accused saw a person emerging from a disused room where various tools are kept. Rodney Gwezere managed to identify the person that the accused had seen and he indicated that it was the deceased.

The deceased started walking towards the direction where the accused and Rodney Gwezere were coming from.

The accused expressed his displeasure on why the deceased had visited his homestead at night since the accused was mis-using some of the items that were stored in the storeroom.

At that juncture, the deceased started to insult the accused and both parties exchanged harsh words.

The deceased kept on walking towards the accused, and the accused went away to avoid confrontation.

The accused went straight to Mr. Dhokotera's residence, his uncle, to inform him of what the deceased was doing. The accused did not get any answer.

The accused proceeded to the residence of Patrick Gwezere, his uncle, and informed him of what was transpiring. The accused was advised to go to his homestead so that the issue would be resolved on the following day.

As the accused arrived at his homestead, he saw the deceased standing near his house.

The deceased then threw an object, which looked like a small axe, towards the accused, and the accused managed to dodge it. The deceased then picked a wooden pick handle and assaulted the accused on his back. The accused then took the wooden pick handle from the deceased.

In the heat of the moment, the accused struck the deceased twice on the legs and on the head.

The accused shall therefore state, that, he acted in self defence and that the situation was exacerbated by the deceased who attacked the accused at his own homestead.

The accused was provoked by the unwarranted attack from the deceased.

He, however, believes that he might have used excessive force in defending himself.

He shall state that he had no actual or constructive intention to kill the deceased. He prayed that he be found guilty of culpable homicide.

The State, by consent of the accused's counsel, produced the following:

(a) The post mortem report, No 248875, prepared by Dr. Caroline T. Makadzange, on 10 May 2019, which was marked exhibit 1. The doctor observed the following:

(i) Bleeding both nostrils (clotted blood).

(ii) Clotted blood in left ear.

(iii) Three (3) lacerations on scalp noted.

(iv) Bruises on both arms.

As a result of the examination, the doctor concluded, that, the cause of death was severe head injury due to a blunt trauma.

(b) Confirmed warned and cautioned statement of the accused which read as follows:

“I admit that I caused the death of Emmanuel Nyasha Masambu after I had assaulted him with pick handle. I struck him with force, twice on the legs and twice on the head, after he had come to my place in the night and tried to attack me with an axe.”

The confirmed extra-crucial statement was marked exhibit 2.

(c) Exhibit 3 was the wooden pick handle.

Exhibit 4 was the certificate of weight which showed that the handle measured 84cm and weighed 0,895 kilograms.

(d) Exhibit 5 was the sketch plan prepared by Assistant Inspector Musongora upon the indications made to him by the accused and State witnesses. Exhibit 5 reflects the following points and explained by the police detail:

(i) Point C: “Indicates the fowl run where Obey Masambu says he took the pick handle which he used to assault Emmanuel Nyasha Masambu as indicated by Obey Masambu to Assistant Inspector Musongora and witnessed by Constable Chakururama.”

(ii) Point D: “Indicates first point of contact where Obey Masambu says he first assaulted Emmanuel Nyasha Masambu twice on the legs with the pick handle before Emmanuel ran away to point E as indicated by Obey Masambu….,.”

(iii) Point E: “Indicates the point where Obey Masambu says Emmanuel Masambu fell down after he had assaulted him twice on the head as indicated by Obey Masambu….,.”

(iv) Point F: “Indicates a Mutondo tree near the point where Obey Masambu says he assaulted Emmanuel Masambu twice on the head as indicated by Obey Masambu….,.”

The State applied, in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], to have the following witnesses evidence admitted as not being disputed and the defence indicated, that, that application was not opposed; hence, it is recorded that the evidence of Gladys Masambu is not in dispute.

She is the biological mother of both the accused and deceased.

The accused and the deceased had, had many quarrels before the fateful date and there was bad blood between them, she stated.

On 7 May 2019, at around 2300 hours, she was awakened by Rodney Gwezere who had brought the deceased to her. She saw the deceased standing against the wall of his bedroom in the moonlight. She tried to speak to the deceased and he was not responding.

On 8 May 2019, she filed a report about the assault.

She accompanied the deceased to Nyanga District Hospital where the deceased passed on.

Tafadzwa Chakururama is a police detail based at Nyamaropa Police Station. He witnessed Rodney Gwezere and Beauty Ngarazi making indications. He saw blood at the scene of crime where the accused assaulted the deceased. He also witnessed the accused's warned and cautioned statement and the accused made his indications at the scene in his presence.

Thomas Musongora is an Assistant Inspector in the police. He is the investigations officer. Witnesses and the accused made indications at the scene of the crime to him. He saw blood on the ground that had dropped from the deceased's head. He is the one who drew the sketch plan; he also recovered the wooden pick handle and recorded the accused's warned and cautioned statement and caused same to be confirmed.

Dr Caroline Makadzange carried out the post mortem report examination on the deceased's body. She compiled a postmortem report, exhibit 1.

The evidence of Miasimbaashe Sambama, the ambulance driver, has no much weight in this matter.

Noah Douglas Posi is employed by Zimpost and stationed at Nyanga Post Office. He is the one who weighed the wooden pick-handle, exhibit 3.

The State led evidence from Rodney Gwezere.

He resides at Matanga Village, Chief Saunyama, Nyanga. Both the accused and the deceased are his nephews; he is related to the mother of the deceased's father. On 7 May 2019, he was with the accused at the latter's homestead. The accused's wife was also present. There is a disused hut at the accused's homestead where the accused's grandmother used to stay. The deceased had his bag there.

Whilst the accused and the witness were at the homestead, they heard some noise and both went out to check.

Upon the accused's arrival at the hut he saw the deceased carrying a bag on his shoulder.

The witness told the court, that, the accused confronted the deceased on what the deceased wanted; he told the deceased that he wanted to steal. The deceased told the accused that he had nothing to steal since there was nothing worth stealing, the deceased had simply come to collect his bag. The accused took the deceased's bag so that he could hold it as exhibit that the deceased was a thief.

He went to Patrick Gwezera's homestead to show him.

When the accused returned to his homestead, he found the deceased standing in front of the accused's house and handed him back his bag.

As soon as the deceased got his bag, he turned away leaving the accused's homestead; the accused picked up a pick handle from the fowl run at his homestead and struck the deceased on his legs.

The deceased fled and the accused was in hot pursuit, leaving the witness behind.

When the witness caught up with the two, the accused and the deceased, he found the deceased on the ground.

The witness tried to remonstrate the accused over what the accused was doing; the accused obliged and threw the pick handle down.

He proceeded to switch on the light of his cell phone to check at the deceased's condition and the accused realized that he had badly injured the deceased.

The witness observed blood flowing from the deceased's head, ears, nostrils and his mouth.

The accused left the scene, leaving the witness attending the deceased.

The witness tried to call out the deceased's name but there was no response; the witness attempted to lift the deceased and let him sit up but the deceased could not sit upright; the witness then lifted up the deceased and took him to the deceased's mother's homestead.

The evidence of the witness, as far as to what happened, is identical to Gladys Masambu's evidence and needs no repetition.

After Rodney Gwezera's testimony, the State closed its case.

The accused gave evidence and virtually adopted the course of events as outlined in his Defence Outline, which has been extensively copied herein.

Most issues were admitted by the accused, that, on the day in question, he recognised his late brother before he assaulted him. The accused admitted, that, there has been an outstanding dispute relating to a piece of land and was not happy when he saw the deceased at his homestead on the night of 7 May 2019. The accused admits assaulting the deceased on the head, twice; his indications at the scene quoted hereinabove, the accused showed police three places; at point D, he assaulted the deceased on the legs, twice on the head; and, at point F, he delivered two more blows on the deceased's head.

So, it is apparent from the foregoing, using the accused's own admissible evidence, he hit the deceased four times on the head with the pick-handle.

It is highly possible, in the circumstances of this matter, that, the accused could possibly have assaulted the deceased on the head on more than four occasions given the nature of injuries on the deceased as shown on the post-mortem report.

The accused did not fair well in his defence case; we agree with the State that his evidence went into an overdrive completely contradicting himself in the process.

His indications, produced by the consent of his legal practitioner, were disowned by the accused; moreso when he was asked to explain as to who brought the pick handle at the scene.

The accused failed dismally to establish evidence which could show that he was acting in defence of self.

From the evidence of Rodney Gwezere, it was the accused who acted provocatively; he called the deceased a thief; he snatched the deceased's bag; upon restoring the deceased's bag, when the deceased was leaving, the accused runs to a fowl run, picks up a pick handle, and, without provocation, launches an attack on the hapless deceased.

The evidence of Rodney Gwezere was not challenged on this aspect and we are satisfied, beyond reasonable doubt, the whole version of the accused being attacked by the deceased, the latter using what appears, at night, to be an axe, is far-fetched.

The version is incredible and we reject it totally.

The accused had a score to settle with the deceased.

From the sketch plan, exhibit 5, the whole incident occurred within a periphery of the accused's homestead, at point F, where the accused delivered, according to him, the last blows on the head of the deceased.

The deceased lost consciousness, and the accused, sensing the gravity of what he had done, abandoned the deceased and fled to Mozambique.

We conclude, that, from point D, the accused, after assaulting the deceased, pursued him to both points, E and F, and, during that, the safety of the accused was not under any threat from the conduct of the deceased.

Throughout, the deceased was a victim and he died a painful death.

The accused aimed a 0,895kg wooden pick handle on a vulnerable part of the body, the skull, and delivered at least four blows on the head.

The oozing of blood from the nostrils, mouth and ears shows that the deceased's life was shattered instantly by the impact of the blows.

The accused was reckless and ruthless as to the manner he mercilessly delivered the blows on the deceased's head.

We are satisfied that the accused had a pre-requisite mens rea or actual intention to kill the deceased; moreso, when it is apparent that the accused targeted a delicate portion of a human body - the head.

The State had managed to prove, beyond reasonable doubt, that the accused is guilty of the charge of murder with actual intent.

HMT15-20 : STATE vs REMIGIOUS SIPANDA and TAPIWA ZVOMUNO
Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

The two accused are charged with murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where it is alleged by the State, that, on 4 November 2018 and at Magamba Turn-off, Rusape, the two accused, in the company of one Lucky, who is still at large, all and each or one or the other of them, unlawfully caused the death of Emmanuel Ngwarati by assaulting him with booted feet and fists and stabbing him with a knife all over the body intending to kill Emmanuel Ngwarati or realizing that there was a real risk or possibility that their conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries which the said Emmanuel Ngwarati died.

Both accused pleaded not guilty to the charge.

RIMIGIOUS VITALIS CHIBANDA SIPANDA: ACCUSED ONE'S DEFENCE OUTLINE

Accused 1 stated, that, on 4 November 2018, he was at home in Overspill, Epworth in Harare. He does not know the other accused person(s). He never participated in the commission of the crime.

He was arrested because he was the last person to communicate with the deceased on the morning of 4 November 2018 through his mobile phone.

He will further state, that, the deceased called him on 4 November 2018 only enquiring about his money and drugs.

The deceased wanted to know when the accused person was coming to Rusape.

Accused 1 was arrested on 23 November 2018, at Overspill, Epworth, Harare; at a bar where he had gone to see his girlfriend.

He prayed for an acquittal.

TAPIWA ZVOMUNO: ACCUSED TWO'S DEFENCE OUTLINE

Accused 2 denies causing the death of the deceased as alleged. On the fateful day, he received a call from his acquaintance, Lucky, inviting him to travel from Harare to Rusape so that they could indulge.

When he arrived in Rusape, he met up with Lucky, who was drinking alcohol and already in the company of the deceased and one Remmy.

To the second accused, the three appeared before him to be mutual friends.

All four of them were partaking alcohol in a Night Club.

At some time, Accused 2 overhead an argument between the deceased and Lucky centred on some gold parcel that had allegedly been left at Nyazura Township by the deceased. As the night progressed, Lucky suggested to the deceased, that, they should all proceed to Nyazura to retrieve the gold parcel from the deceased's girlfriend's place, where it had allegedly been left.

The deceased agreed to the proposal on condition that his car was fuelled.

Accused 2 loaned Lucky $20 to procure fuel and the money was given to the deceased to buy fuel - which he did. The four of them got into the car with the deceased driving and Lucky seated in the front passenger seat.

Along the way, the argument between Lucky and the deceased intensified and the deceased stopped the car on the side of the road. He switched off the engine and lights and got out of the car.

The deceased relieved himself by the side of the car. Lucky also got out of the ca; the deceased hinted that he was no longer taking them to Nyazura to pick up the gold parcel. Lucky was incensed and a fist fight erupted between the two.

The deceased brought out a knife from the pocket of his trousers and threatened to stab Lucky. At that moment, Accused 2 and Remmy got out of the vehicle and restrained the two. Remmy held Lucky and the accused held the deceased's hand which was holding the knife.

Lucky got free from Remmy's grip and charged at the deceased.

Lucky forcibly took or snatched the knife from the deceased. During the melee, Accused 2 was stabbed on his hand and began to bleed. He released the deceased and went to stand by the car. Lucky and the deceased continued their altercation and he observed Lucky stabbing the deceased several times on the thigh.

The second accused screamed at Lucky to refrain from the aggression as the deceased was apparently hurt and was bleeding. Lucky was not deterred and he continued to attack the deceased. Remmy was also calling out to Lucky to stop the violence.

Eventually, Lucky stopped and the deceased was crying out that he had been hurt badly.

Lucky was belligerent, indicating that he wanted his gold. The deceased indicated that he was not going to release the gold and that he was better off dead.

The deceased twice crawled into the road so that he could be run over by passing vehicles. On both instances, the deceased was pulled away from the pending danger by Remmy.

The deceased shouted that he was going to commit suicide that night. Lucky suggested that the deceased be restrained so that he could not harm himself.

Lucky and Remmy tied up the deceased on his legs and arms. They ferried him a few metres away from the road and placed him there.

Accused 2 pleaded with Lucky not to leave the deceased at that spot, but, Lucky would not hear any of it. Lucky ordered the accused and Remmy into the car and he drove back to Rusape.

On the way back to Rusape, the second accused pleaded with Lucky to be dropped off at the bus terminus to catch a lift to Harare. Lucky obliged and he was dropped off.

Before Lucky and Remmy drove away, Lucky disclosed that he had taken the deceased's phone and that he was going to use same to recover the costs of the fuel that had been put in the deceased's car.

Accused 2 got a lift that took him to Harare.

The following day he was called by Lucky who suggested that they should meet in town. He obliged, and, upon arrival, he found Lucky waiting for him. Lucky produced a white Samsung phone and indicated that he was looking for a buyer to sell the cell phone to so that he would raise bus fare to his residence in Epworth.

The second accused contacted Ernest Mhishi who came and purchased the phone for $10. Lucky took all the money and parted ways.

That was the last time Accused 2 saw Lucky.

A few days later he was arrested and he told the police the full story but they would not accept it.

Accused 2 was psychologically and physically abused by the police during investigations to the extent that they forced him to sign a false warned and cautioned statement.

Even during the confirmation proceedings, the police officers maintained vigil and a menacing presence.

Accused 2 urged the court to appreciate that he never attacked the deceased; he was actually injured or stabbed when he intervened to stop the fight between the deceased and Lucky; he did not participate in tying up the deceased; he protested to Lucky that what he was doing was wrong.

When the deceased was tied up and taken away from the road he was much alive but had been injured.

Accused 2 prayed for his acquittal.

BACKGROUND

The State summary produced by the State briefly states, that, the two accused, and one Lucky, all resided in Epworth, Harare and the deceased lived in Rusape where he operated an unregistered taxi.

On 3 November 2018, the deceased left his home to visit his rural home but returned the same day. On the same day, the accused persons, and their accomplice, left Epworth, Harare by bus destined for Rusape.

In Rusape, they went to Cheers Bar and drank beer. After some time, the two walked to the Harare-Mutare road while their accomplice remained at the bar for a taxi.

In no time, the accomplice met the deceased who then called Accused 1 to find their exact location. When the said Lucky and the deceased arrived where the two accomplices were, the three immediately attacked the deceased with clenched fists, booted feet, and a knife all over his body.

They immobilised him before taking his cell phone and wallet which were in his trousers pocket. They tied his hands and feet and blindfolded him before putting him on the car which one of them drove.

They drove along in his vehicle, and, upon reaching Magamba turn off, they stopped the car. They took the deceased out of the car and demanded the PIN to his ecocash account and assaulted him when he did not oblige. They took away his cell phone and case as well as his car before leaving him there.

He was found by passers-by in the morning.

STATE CASE

In order to prove its case, the State led the following evidence:

(a) The post mortem report, exhibit 1, the Doctor noted that:

(i) The left wrist was fractured;
(ii) Incisive wound penetrating on the right chest to 2cm above the nipple and 8cm of the sternum area, the wound was 5cm long by 4cm wide;
(iii) Incisive wound by 0.5cm of width on the upper portion of the left thigh;
(iv) Incisive wound of 7cm of length and 4cm of width located on the left tibia;
(v) Plaque abrasion on the knee;
(vi) Contuse wound of 2cm of length on the left hand;
(vii) Incise wound of 3cm by 2cm of width on the left scapule;
(viii) Incise wound of 5cm of large by 4cm of wide on the right scapule;
(ix) Incise wound of 3cm of large on the outer of thoracic spine cord;
(x) Incise wound of 2cm of large on the outer of thoracic spinal cord;
(xi) Incise wound penetrating of 4cm of large by 3cm of wide bipanetal area;
(xii) On the brain, the Doctor detected haematoma, moderate brain oedema, moderate brain congestion, chronis anochroniditis signs;
(xiii) On the thorax: right haemothorax of 60ml;
(xiv) Section of the right second rib with haemorrhagic injury;
(xv) The pleura had a right rapture;
(xvi) The right lung had a rapture of 1cm of large on the upper lobe on the back side, the heart was affected;
(xvii) The liver had a rapture on the right lobe;
(xviii) Both kidneys had shock appearance.

As a result of the examination, the Doctor formed the opinion that the cause of death was:

(a) Hypovolemic shock.

(b) Right lung rapture and left saphengrum section.

(c) Multiple stab wound injuries.

The Doctor further remarked, that, the traject of the stab wounds injuries are multiple, the weapon is a sharp object with approximately 4cm of wide and 10cm of large.

(b) The State also produced exhibit 2 which is the call history of the deceased's cell phone showing that the deceased called Accused 1 after midnight on the morning of 4 November 2018.

(c) Exhibit 3 was the photo album of the postmortem process showing the deceased's affected body parts.

(d) Exhibit 4 was the Vodafone cell phone.

(e) Exhibit 7 was the sim card for number 0784742542.

(f) Exhibit 8 was the driver's license belonging to the deceased.

(g) Exhibit 9 was the blood stained pair of jean trousers.

(h) Exhibit 10 is the confirmed warned and cautioned statement of Accused 2.

The statement was recorded by Detective Sergeant Muwowo at Rusape CID on 16 November 2018 at 1500 hours and the English version of the Shona translation was captured thus:

“I do admit to the allegations that I killed a person called Emmanuel Ngwarati. I committed the offence in the company of my accomplices, namely, Remmy and Lucky, who both stay in Overspill in Epworth.

Remmy is the one who planned for us to go and steal in Rusape since he was the one who knew that area.

On 3 November 2018, at around 2000 hours, I boarded a motor vehicle, with my accomplices, heading to Rusape. We arrived at Rusape at around 2300 hours and we proceeded to a certain Night Club which is in Rusape where Lucky remained behind looking for a taxi driver.

I and Remmy then walked on the road towards Mutare along the Harare-Mutare road.

Whilst on that road, I planned with Remmy, that, if Lucky comes with the taxi driver, we will grab him, tie him, and rob him of his motor vehicle which we will then use in the commission of crimes.

We walked with Remmy and we reached a left turn which is along the Harare-Mutare road and we stopped there.

The taxi driver, Emmanuel Ngwarati, then called Remmy asking where we were and Remmy explained to him where we were. Emmanuel Ngwarati then arrived with his motor vehicle, in the company of Lucky who was sitting behind the driver's seat.

When the motor vehicle stopped, Lucky grabbed Emmanuel Ngwarati's hair and started pulling it backwards. I then opened the driver's seat door and I dragged Emmanuel Ngwarati outside and we laid him on the ground.

I assaulted him with fists and booted foot all over his body. Lucky is the one who produced a knife and started stabbing him with it all over his body. Remmy also assaulted him with fists and booted foot all over his body.

I then grabbed Emmanuel Ngwarati's hands and Remmy grabbed his legs. We removed his trousers and took two cell phones, wallet, and cash amounting to $1.50 which was in the pockets of his trousers.

Lucky then took the car keys and some canvas belts which were in the car and we tied Emmanuel Ngwarati's hands to the back and we also tied his legs with the same canvas belts.

Lucky took Emmanuel Ngwarati's trousers and cut off a small piece with a knife which we used to blindfold him so that he will not be able to see wherever we were going.

We lifted Emmanuel Ngwarati and we placed him at the centre of the backseat. I and Lucky also sat on the back seat flanking Emmanuel Ngwarati.

Lucky drove the car towards Mutare and took a left turn which is along the Harare-Mutare road and stopped on an open area and we took Emmanuel Ngwarati outside the car. Remmy started demanding ecocash account number from Emmanuel Ngwarati but he remained silent. Remmy then took some jumpers from the car and started assaulting him with them on the back and buttocks demanding him to say out his ecocash pin but he remained silent. We then left him there and took his vehicle and returned where we committed another theft crime.”

The statement was confirmed at Rusape Magistrate's Court on 26 November 2018.

The State applied, in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], to have the following evidence of the witnesses to be admitted by the court thereby dispensing the testimony of the witnesses.

The defence counsel indicated, that, the production of the synopsis of that evidence, as outlined in the State summary, was by consent.

As a result, the evidence of James Makolo, Last Adam, Cephas Maramba, Peter Chikwature, Thomas Nyamudya, Tafadzwa Changara, Mervis Ganyata, Tofirei Mazongonda and Dr Aisa was accepted by the court as not in dispute.

The evidence of Lucia Munyikwa was expunged from the summary of evidence of the State.

The State then proceeded to call the wife of the deceased, Tsitsi Melanie Madziwa, Ernest Mhishi, Detective Assistant Inspector Gift Mazano, the investigating officer, Detective Sergeant Muwowo, and MacDonald Mutasa.

The evidence of each of these witnesses will be analysed in respect of each accused.

WHETHER THE STATE PROVED ITS CASE AGAINST THE FIRST ACCUSED

The first accused, in his defence, stated, that, he was not at the scene of the crime on the early morning of 4 November 2018. He states that he was in Epworth.

In other words, he raised a defence of alibi.

He however admits that he spoke to the deceased over the phone on the morning the deceased was murdered.

The defence counsel for the first accused submitted, that, there is no evidence led by the State to prove that the first accused participated in the robbery, assault, and eventual killing of the deceased by the second accused and the other two accused who are still at large, Lucky and Remmy.

He further submitted, that, Accused 2 in this case exonerated the first accused from the commission of the offence as he was clear that it was not Accused 1 whom he refers to as Remmy.

The first accused also contends, that, there is no evidence proving that the phone call made by the first accused had anything to do with the deceased's death. No triangulation of the call history was produced to prove the geographical location of the first accused at the time he received the deceased's call.

On the aspect of the bag, the defence for Accused 1 submitted, that, the bag was not brought to the hospital by the first accused but by a third party.

When the first accused was already detained, only the person who brought the satchel, which had the deceased's driver's license, should explain where he got the bag and how the deceased's driver's licence ended being there in the bag.

In relation to the first accused, the State called Detective Assistant Inspector Gift Mazano.

He knows the first accused as a local of Rusape; he also knew the deceased.

On 15 November 2018, together with other detectives, they recovered the deceased's Vodafone cell phone from Ernest Mhishi who led detectives to Accused 2. They were then led to the first accused by Accused 2.

Counsel for the first accused consented to the admission of the evidence of Mervis Ganyata in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] and the essence of her evidence is that on 23 November 2018 she was present when the first accused was arrested at Overspill in Epworth.

She was present when a search was conducted on the first accused which led to the recovery of a Nokia cell phone with an econet line number 0784742542 which was the last number used to communicate with the deceased.

The first accused confirmed the line was his and his participation in the deceased's demise…,.

McDonald Mutasa is a duly attested member of the Zimbabwe Prison and Correctional Services. He only knows the accused only in connection with this case.

On 26 November 2018, he was one of the officers guarding the first accused person. As per procedure at his workplace, he searched the first accused's belongings and found in his satchel two screw drivers and a Zimbabwean driver's license in the name of the now deceased. He informed the police of the findings and handed over the licence and screw drivers.

The foregoing evidence of Gift Mazano, Mervis Ganyata, and McDonald Mutasa was not, in principle, challenged by the first accused.

The court had no reason to impugn the same in any way.

The first accused admits throughout the hearing, that, he indeed received a call from the deceased – though, to the first accused, the subject of the call kept changing.

According to the State, the deceased last called the first accused as to verify their location in Rusape so as to drive there. At the time the ultimate call was made by the deceased; the deceased was already with Lucky and the first accused at that time of call was with the second accused at a point in Rusape.

The first accused could not coherently explain to the court why he could be awake at 12:45am and answer incoming calls at that odd hour.

We have no hesitation in accepting the version of the State, that, at the time the first accused answered the deceased's call, he was with Accused 2 in Rusape awaiting the arrival of Lucky and the deceased.

The first accused could not produce any evidence that he told the investigation officer about his alibi. He withheld his warned and cautioned statement which could have at least shown, that, through and through he has been raising a defence of alibi.

If he had done so, surely, detectives could have interviewed any witness at Overspill where the first accused was apprehended.

Further, according to the evidence of Mervis Ganyata, the first accused admitted his participation in the deceased's demise upon his arrest at Overspill in Epworth

Thus, we dismiss the whole euphoria about the defence of alibi raised by the first accused as an afterthought.

McDonald Mutasa gave impeccable evidence; it was not exaggerated; and the defence counsel for the first accused mounted a casual challenge to his evidence.

He did not exaggerate; he logically and fluently told the court when, why, and where he searched the first accused's satchel and how he discovered the deceased's license.

He confronted the first accused about the bag, and the first accused confirmed that it was his.

If police had planted the license in the first accused's satchel, they must be the ones to first take the first accused to task - well before placing the first accused on remand.

In any case, Detective Assistant Inspector Gift Mazano searched the scene where the deceased's body was found as well as the deceased's motor vehicle; he did not mention that the license was found.

The unavoidable conclusion we have reached is that the deceased's license was in his case or purse which was taken by the assailants from the car at the scene of murder together with the cash, the cell phones, and other valuables.

That group of assailants included the first accused, who, among other things, took possession of the subject driver's licence.

That is exactly what the Shona adage accurately encapsulates what happened in this matter:

“Mhangachena inoparira parere nhema.”

The recovery of the license by the alert McDonald Mutasa, high recommendation to him, directly places the first accused into the chain of events up to the time the deceased was murdered.

We have no hesitation, therefore, in concluding that “the mysterious” 'Remmy' continuously alluded to by the second accused is the first accused.

It also makes sense why the second accused led the police to Accused 1, and, further, as to where the first accused was on 4 November 2018.

The first accused was with Lucky and Accused 2, and the fourth person in the car was the deceased.

We are satisfied, beyond reasonable doubt, that, the State had proved its case beyond reasonable doubt against the first accused.

WHETHER THE STATE PROVED ITS CASE AGAINST ACCUSED 2

Accused 2 gave a very long Defence Outline giving the interns of what happened on the fateful day.

The quintessence of his defence is that he was at the scene on the day in question, but, did not participate in the murder case. It was Lucky who perpetrated the murder while he helplessly stood by.

On the issue of the cell phone, Accused 2 insists that he was selling the phone on behalf of Lucky.

He went on further to state, that, detectives intimidated him and forced him to sign the warned and cautioned statement which he did not agree with. He added that Detective Sergeant Muwowo threatened to shoot him.

He was also threatened during confirmation proceedings.

He was only refraining Lucky.

The second accused further submitted, that, he has managed to challenge his confirmed statement for it was not made freely and voluntarily.

As regards the second accused, the State led evidence from Ernest Mhishi, the cell phone buyer.

His evidence is not heavily contested by the second accused.

Accused 2 contacted Ernest Mhishi and offered him a phone for sale. He sold it for $10 which money Accused 2 says he gave to Lucky, but, thereafter, both Accused 2 and Lucky proceeded to Epworth together.

Ernest Mhishi led to the arrest of Accused 2.

Detective Assistant Inspector Mazano's evidence is on all fours with Ernest Mhishi as to how Accused 2 was arrested.

Detective Sergeant Muwowo, the investigating officer in this matter, went with Detective Assistant Inspector Mazano to Harare, recovered the Vodafone cellphone from Ernest Mhishi and then arrested Accused 2 upon the indications of Ernest Mhishi.

He recorded a warned and cautioned statement from both accused and later facilitated Accused 2's statement's confirmation but he did not attend court on the date of confirmation.

Detective Sergeant Muwowo was cross examined at length by counsel for the second accused but he remained cool and denied subjecting Accused 2 to any pressure leading to the recording of the warned and cautioned statement and the confirmed statements.

The second accused has placed himself squarely at the scene of murder; unavoidably, he virtually knows what exactly transpired on the day in question.

ACCUSED'S CONFIRMED WARNED AND CAUTIONED STATEMENT

Section 256(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows:

“A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof.

Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without him having been unduly influenced thereto; and, if after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement he may reopen his case for that purpose.”

The confirmed warned and cautioned statement of Accused 2 was produced by the State with the consent of counsel for Accused 2.

Accused 2 did not challenge the admissibility of the warned and cautioned statement which could have triggered the course of action as per the proviso to section 256(2) of the Criminal Procedure and Evidence Act cited supra.

If the challenge was done by Accused 2's defence counsel, that would have necessitated a trial within a trial.

The court is at a loss when Accused 2, in his closing submission, contends that he managed to prove that he did not voluntarily give the warned and cautioned statement to the police.

Maybe he thinks, that, by putting questions to the investigation officer during the main trial, he was challenging the admissibility of the statement - before even the production of that statement: see the matter of Moffat Sibanda v The State SC61-91 per GUBBAY CJ…,.; and also R v Schumber Kuffler 1969 (1) RLR 78…, per BEADLE CJ.

We are satisfied, that, the production of the second accused's confirmed warned and cautioned statement by the State, with the consent of the defence counsel, was above board and the statement is admissible against Accused 2 in terms of section 256(2) of the Criminal Procedure and Evidence Act: see the case of Kevin Woods and 2 Ors v The State 1993 (2) ZLR 258, per GUBBAY CJ…,.

On page 11 of the report, he aptly held that:

“…, in the absence of a patent irregularity in proceedings to confirm the warned and cautioned statement and indications made by the first and second appellants, all such statements were admissible on their mere production in terms of section 242 of the Criminal Procedure and Evidence Act…,.”

See also the provisions of section 273 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Accused 2, throughout his defence, shifts all the blame to Lucky alleging that he initiated the trip to go to Nyazura to collect the gold parcel; confronted the deceased; assaulted the deceased; and stabbed him several times using a knife.

In our view, the accused is merely taking advantage of the absence of Lucky who is not before us.

However, the confirmed warned and cautioned statement, the selling of the cell-phone to Ernest Mhishi places the second accused at the helm of the crime.

Why did Lucky not sell the cellphone on his own?

Section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides:

“If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue or having the intention to commit it, or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then, they may be convicted as co-perpetrators in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed to be the conduct of every perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission for the crime by actual perpetrator.”

The conduct of Lucky and the accused was collaborative of each other's.

We are satisfied, that, both accused and their outstanding accomplice, Lucky, set out from Harare with the express intention of committing robbery in Rusape. In Rusape, they picked out the deceased upon the involvement of Accused 1, who was incidentally very familiar to both the deceased and the geography of the town; they tactfully lured him to an isolated rendezvous where they brutally assaulted the deceased. They later kidnapped him to the place where his body was eventually found, demanded the PIN number to his ecocash account, assaulted him further, then ransacked his motor vehicle. They then drove away after tying him and blind-folded him.

The second accused is obviously not telling the truth that he did not report the matter to the police because he feared Lucky. He did not report the matter because he was a co-perpetrator to the murder of the deceased.

We also reject his (Accused 2's) that he was just watching helplessly as Lucky was literally mutilating the deceased's body with a lethal weapon.

As already highlighted hereinabove, the detailed account of Accused 2's version, both in the Defence Outline and confirmed extra-curial statement, tallies with some of the facts admitted by both as common cause in this matter.

The State has successfully managed to prove the case against Accused 2 beyond reasonable doubt.

He participated knowingly in the robbery of the deceased and also participated actively in the killing of the deceased and dumping his body. He benefited a cell phone from the loot and Accused 1 took away the deceased's driver's license.

We are thus satisfied that both accused are guilty of murder with actual intent in terms of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

HMT17-20 : THE STATE vs EMMANUEL CHITURUMANI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

The accused was arraigned before this court on a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleges, that, on 28 October 2018, and at Munhuhaashati Village, Chief Mutema, Chipinge, the accused person unlawfully caused the death of Phillip Ndlovu by striking him twice on the back intending to kill him or realizing that there was a real risk or possibility that his continued conduct might cause the death and continued to engage in that conduct despite the risk or possibility thereby causing injuries from which the said Phillip Ndlovu died.

The accused pleaded not guilty and denied having intentionally caused the death of the now deceased; and he argued that the assault with a stick or switch was not the cause of death of the now deceased.

The accused, in his Defence Outline, which he later adopted as evidence in chief, protested his innocence as he outlined events of the day in question.

According to the accused, on 28 October 2018, the now deceased person, together with Felistas Vhingeya, Tadiwanashe Chiturumani, Tanatswa Chiturumani, and Learnmore Vhingeya took longer than expected to come back from the fields where they had gone to check for baboons. Upon making follow ups, the accused was shocked when he observed the now deceased seated with no short on while the four (4) children were paired with the girls mounting on top of the boys.

Tanatswa Chiturumani mounted Learnmore Vhingeya while Felistas Vhingeya mounted Tadiwanashe Chiturumani.

The accused then looked for a small stick with which to chastise the four minor children and the now deceased.

As he was using the stick, the now deceased ran away, and, upon being pursued by the accused, the now deceased made a U-turn leading to a collision with the accused and they both fell to the ground.

The now deceased got up first, and, when he tried to run away, he collided into a Musasa tree with his head following which he fell down unconscious.

The accused sought for help from the elders but the deceased succumbed to his injuries and passed on after an hour.

The accused maintained his version throughout the defence case.

It is also worth noting, that, the same version was given in his confirmed warned and cautioned statement, tendered as exhibit 1, by consent, wherein the accused stated:

“I admit to the charge being levelled against me, in that I struck Phillip Ndlovu twice with a stick on the back. He ran towards me and we collided and we both fell down. He got up and tried to run away and collided on a Musasa tree by his head and fell down and fainted. He then died after we carried him home.”

The accused was consistent in his version. He was a reliable witness.

The State relied on evidence of nine (9) witnesses, most of which was on contentious aspects, and such admitted formerly in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The first two witnesses gave oral evidence.

Tanatswa Chiturumani's evidence was essential, that, the juvenile children went to chase away baboons from the maize field. While at the field, the now deceased instructed the children to remove panties and ordered the girls to mount on the boys.

It was then that the accused arrived and he assaulted all the children who ran away - including the deceased.

She confirmed that the accused used a switch to assault them.

It was also clear from the witness's evidence that the deceased hit onto a tree and fell down.

The witness did not give much detail on how the deceased died, but, that did not take away the clear and credible narration of the events given her age.

The witness was credible.

The second witness to give viva voce evidence is Dr Ozimmo Mativenga.

The doctor examined the remains of the deceased. He explained his finding as reflected on the post-mortem report tendered as exhibit 3 by consent.

The doctor observed lacerations on the lower back of the deceased, oral and nose bleeding, abnormal circumrotating of the neck which made him conclude that the cause of death was due to head injury and spinal cord injury. He attributed the fatal injuries to hitting a hard surface with force.

The doctor gave his evidence well and he made it clear that the lacerations on the back could not have caused death but the injuries on the head and neck.

His evidence was beyond reproach.

The issues that fall for determination are:

(1) Whether or not the accused unlawfully and intentionally caused the death of the deceased.

(2) Whether or not there is any nexus and/or causal link between the admitted assault perpetrated on the deceased by the accused and the death of the deceased.

From the totality of the evidence, it is apparent the deceased died as a result of head, neck, and spinal cord injuries occasioned by hitting on a hard surface - the tree. It is common cause the deceased appeared to be promoting and encouraging the children to engage in sexual activities and obscenities.

The deceased himself had no short on, while the children with no panties were mounting on each other.

It is also not in dispute that this prompted the accused to take a switch to chastise the juvenile children and the deceased.

From evidence adduced, the chastisement, the manner, and nature of switch used could not have occasioned the nature of injuries observed by the doctor on the head and neck.

The charge of murder the accused is facing requires proof of both the unlawful action and intention to kill: see State v Kurangana HH267-17 and S v Mungwanda 2002 (1) ZLR 57.

In this case, the accused simply made a follow up because the children had taken too long before returning from chasing the baboons from the maize field. He only took a stick to discipline or correct the children upon seeing them engage in indecent, obscene acts.

The accused cannot be said to have set out with an aim to kill and proceed to kill the deceased.

Going by the nature of switch or stick used, and on all the children, including the deceased, one cannot even infer legal intention.

There is just no evidence of realisation of risk given the manner in which the children and deceased were assaulted.

The death occurred when the deceased bumped or collided with a tree with force.

There is no link or nexus between the assault with a stick and the ultimate collision culminating in fatal head and spinal injuries which caused the death.

In fact, the accused only struck the deceased twice on the back and the latter fled and suddenly made a U-turn as if to retaliate. That led to both the accused and the deceased falling. The deceased was the first to rise and then he ran into the Musasa tree trunk.

The sequence shows there was a clear break from the assault: see State v Heremiah Masvaure HMA24-18 on causation.

In this case, the falling and subsequent rise by the deceased which followed his severe collision with a tree cannot be related to the assault.

There is no causal link between the admitted minor assault and the death, as ably explained by the doctor, who, in an unambiguous manner, excluded the lacerations on the back from being the cause of death.

That the State has an onus to prove, beyond reasonable doubt, that the accused unlawfully and intentionally caused the death of the deceased is settled: see section 18(4) of the Criminal Law Code and also see R v M 1946 AD 1023; S v Makanyanga 1996 (2) ZLR; and S v Kulper 2009 (1) ZLR where GREENBERG J quoted with approval in R v Difford 1937 AD 370; the learned judge had this to say:

“…, no onus rests on the accused to convince court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is reasonable possibility of his explanation being true, then, he is entitled to an acquittal.”

In this case, the accused's version of events is supported by the State witnesses, including the two witnesses who gave oral evidence.

The children were being mischievous and the accused sought to stop them by assaulting them using a stick and they ran away. The doctor excluded the use of the stick as the cause of death. A close look of the circumstances leading to the death of the deceased does not even give room, by stretch of the imagination, to imputation of the accused having been negligent.

There is no evidence that he foresaw that death would ensue and that he was negligent or that he failed to guard against the death ensuing.

The accused was removed from the causation chain due to the fall by collision from which the deceased got up and ran away leaving the accused on the ground.

No one was pursuing the deceased when he rammed into a tree and fell unconscious.

The accused, upon realizing, this sought help and carried the deceased home for help where, unfortunately, the deceased passed on.

There was no neglect or negligence on the part of the accused warranting liability for culpable homicide as suggested by the State counsel in closing submissions.

From the foregoing, it is apparent that the accused cannot be held liable for causing the death of the deceased - intentionally or negligently.

HMT20-20 : STATE vs LYDIA NEZANDONYI
Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and MUDZINGE

The accused is facing a charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleges, that, on 24 February 2019, and at Zandoyi Village, Bvumbura, Chief Mutambara, Chimanimani in Manicaland, the accused unlawfully caused the death of Mejury Matiza by striking her several times on her body with a stick, intending to kill her or realizing that there was a real risk or possibility that her continued conduct might cause the death continued to engage in that conduct despite the risk or possibility thereby causing injuries from which the said Mejury Matiza died.

The accused pleaded Not Guilty to the charge.

In her Defence Outline (Annexure “B”) she stated that she never assaulted the deceased either as alleged or at all. She denies causing the death of the deceased or act in a manner in which the deceased's death could have been foreseeable.

According to the accused, she saw the deceased slip and fall hard on a rocky and stony surface at her homestead; thereafter, she observed the deceased fall three more times. When the deceased fell for the fourth time, the accused went to her aid and carried the deceased home.

She further stated, that, she will dispute the evidence of Gracious Matiza, Godfrey, and Joseph Matiza in as far as it suggests that she assaulted the deceased and caused some visible injuries.

She indicated, that, she will accept the rest of the State evidence subject to clarification of the pathological report only.

She prayed for an acquittal.

The facts of the matter appear from the Summary of the State case (Annexure “A”).

The accused is aged 28 years; the deceased was the accused's step-daughter aged eleven (11) years. On 24 February 2019, at around 12:30 hours, the accused was at home with her two step-daughters and her son, Leon.

The accused sent Gracious, aged ten years, to a neighbour's house. The accused picked a stick, called the deceased into the bedroom house, and, whilst inside the house, assaulted the deceased several times upon her body. The deceased exited the house crying holding her head and back.

The accused sent the deceased to go and fetch water. On her way to fetch water, the deceased was instructed to drive a beast away from the fields; on her way, the deceased fell down three times and the fourth time she became unconscious.

The accused took the deceased to their homestead; the deceased was vomiting.

The deceased's father, Joseph Matiza, rushed to the scene from the garden when he heard the deceased crying. Joseph enquired from the accused what had happened, but, the accused person denied any knowledge as to what could have happened.

Joseph Matiza took the deceased to Mutambara Mission Hospital whereupon arrival she was further referred to Mutare Provincial Hospital where she was admitted. On 9 March 2019, the deceased died.

A post-mortem by Dr Aisa Serranole concluded, that, the cause of death was due to brain haemorrhage, head contusion, and head injury.

STATE CASE

The evidence of the State witnesses, namely, Temba Mutsakani Manzete, Caroline Kitsire, Innocent Zano, Shepherd Mataure, Catherine Mvundure, Blessing Zumba, Partson Mudimbwa and Christina Chikodza was, upon the application of the State and consent of the defence counsel, admitted in court in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The confirmed warned and cautioned statement of the accused was produced by consent and marked exhibit 1. The English version of the statement reads:

“I understood the nature of the allegations being levelled against me by the State. I do not admit to the charge. On this day, I sent the now deceased to the well to fetch some water. On the way, I further instructed her to drive away some cattle so that they should not enter into the field. She then slipped and fell down as she ran to drive cattle. I approached her and she appeared to be very weak and I lifted her and ferried her home. I did not assault the now deceased. She was later taken by Joseph Matiza to hospital.”

The State called Gracious Matiza as its first witness.

The deceased was her elder sister, and the accused is the witness's step mother to her (Gracious). The accused was in court because she assaulted Mejury. She did not know the offence which had been committed by Mejury that caused the accused to assault her. What she recalls was that when she came back to her parent's homestead, from the errand she had been tasked by the accused, she heard the accused calling the now deceased for the latter to go into the house where the accused was.

This call to the deceased occurred after the accused had picked a firewood stub.

The deceased heeded to the call and went into the house. Later, the witness heard sounds of someone being beaten, she then observed the deceased emerging from the house crying. She was holding a five litre plastic container in one of her hands. The witness heard the accused ordering the deceased to go and drive some cattle which were about to go into the field.

She saw the deceased obliging to the order, but, before the deceased could reach where the cattle were, she fell; she saw her rising, stood up but fell again for the second time; stood up once again but fell for the third time; she managed to rise but fell for the fourth time.

At the fourth fall, she never rose again.

When she heard the deceased being assaulted by the accused inside the house, she was standing at a distance of about fifteen metres from the house.

She identified the firewood stub in court as the one which was used by the accused to assault the deceased.

She further told the court, that, when the deceased fell, the accused was standing within the yard of the family's homestead.

The accused later went to where the deceased was lying, lifted her up, tried to console the deceased, and carried her to the house.

She added, that, when the deceased emerged from the house, immediately after the assault, she observed that the deceased was touching the back of her head and also her back, along the waist.

She does not agree with the accused when the latter says she never assaulted the deceased.

Under cross-examination by counsel for the accused, the witness disputed that where the deceased fell is a rocky or stony area. She also stated that she did not access the house or hut where the deceased was being assaulted but she could hear the deceased screaming whilst inside the house, and, simultaneously, the accused was hushing her to keep quiet.

At the time of the assault, the witness could see her uncle, Godfrey Matiza, seated at his homestead, but, she would not know whether Godfrey could hear the deceased screaming.

She also repeated what she stated in her evidence in chief, that, when the deceased emerged from the house where the assault took place she was holding her left side of the head and back; did so even at the time she went to fetch water, and was still sobbing, and, at times, cried loudly.

She also confirmed, that, when the deceased went to drive the cattle, she ran, but, still holding her back and waist.

The witness elaborated, that, when the deceased fell, she did so by the face and stomach; she never fell on her back.

She also noted, that, when the deceased emerged from the house, after the assault, she was drooling.

After the accused lifted the deceased, the witness noted an injury on the left side of her belly region; Godfrey and Joseph also saw the injury.

She also told the court, that, she is the one who identified the firewood stub; she found it near the outside fireplace; the stub had been left by the accused inside the house; she had previously seen the stick before the assault of the deceased when the accused was standing at the door of her house.

The witness was also questioned about the relationship of the deceased and the accused.

She told the court, that, the relationship between the two had developed into acrimony of late when she saw the accused denying the deceased food, and, on the other occasion, assaulted her.

The witness had since left the parental homestead and gone to stay with an aunt in Chegutu.

She concluded her cross examination answers by stating, that, from the first fall to the point where she finally collapsed without being able to rise again, was a short distance.

The State then called Godfrey Matiza as a witness.

He is the young brother to the deceased's father. On the fateful day, he was at his homestead, 40-50 metres away from the scene of the alleged assault, where he was shelling maize. He later saw the deceased coming towards his homestead crying. He remonstrated her against unexplained crying and asked her why she was crying; she did not tell him.

He observed her walking with one hand holding her head on the left hand side, he saw her walking for a short distance and fell, he was at a distance of 4-5 metres from where the deceased was.

He later heard the accused ordering the deceased to go and drive some cattle which were about to go into a nearby maize crop field; as she moved towards that field, she fell again.

She placed the water containers down and staggered going towards where the cattle were. She called the name of the lead ox three times; after the call, she fell again.

At that stage, the accused walked through a pathway which has stones or rocks on either side going to where the deceased was lying.

The witness confirmed that there are sparsely distributed stones around the area, but, stated that the deceased fell headlong, and, at the place she fell for the second time, the area is grassy; the second place of fall was 6 metres away from the first place she had fallen.

He observed the accused lifting the deceased and taking her to the house. She placed the deceased at a place where the accused normally conducted her prayers and the accused started praying.

When the witness finally followed the accused to the latter's homestead, he found the deceased lying but observed drool oozing from the deceased's mouth and nostrils.

The witness assisted the deceased's father to look for transport to ferry the deceased to Mutambara Hospital. He further told the court that he noted a fresh wound close to the deceased's rib cage area when the father was changing her clothes in preparation to take the deceased to the hospital.

To the witness, the relationship between the deceased and the accused was cordial.

Under cross-examination, he told the court, that, because of the distance between his brother's and his homestead, he did perceive the deceased screaming. When the deceased approached the witness's homestead, he saw Gracious standing by the wreck built for plates, outside the house.

Although the witness confirmed that where the deceased fell there is a stony surface, he did not see the deceased's head hitting the ground, nor, upon observing her, did he discern any visible injuries on the head.

He did not ask the accused whether she had assaulted the deceased; he only got the information from Gracious.

He identified the stick and handed it to the police.

The State then called Joseph Matiza, the deceased's father.

The relationship between the deceased and the accused used to be very cordial, but, as time moved on it became unfriendly.

On the day in question, he recalled being summoned by the accused, through the deceased, who was sent to call the father who was at the garden. Upon arriving at the homestead, he was told by the accused that the deceased had caused his son Leon to fall. The accused did not know what the deceased had done to her son, Leon.

After the briefing, the witness went back to the garden; barely had he settled at the garden did the witness hear the deceased crying; he called out to the accused to establish what had caused the deceased to scream; he did not get a response from the accused; the witness resolved to go back to the homestead to find out.

He found Gracious standing near the wreck for the plates and observed the accused giving orders to the deceased to drive away the beasts. He then saw the accused carrying the deceased in her arms. He asked the accused as to what had happened to the deceased and the accused told him that she knew nothing that could have happened to the deceased that led to the condition the deceased was then in.

At the time the deceased was handed over to the witness, her blouse was unravelled; it exposed a fresh injury just below her abdomen, above the hip. The witness asked the accused whether she had not done anything to the deceased but she told him that she has not done anything to her.

He kept on asking the accused that question because earlier on the accused had told him what the deceased had done to Leon.

He was asked to describe the terrain where the deceased fell and he told the court, that, from his homestead going towards Godfrey Matiza's place, there is a lawn surface, but, on another side, there are some gravel or stones or erosion brought about by cyclone Idai.

Under cross-examination by defence counsel, the witness stated, that, from the date he took the deceased to hospital he was seeing the accused after a long period of time. After the death of his daughter, he asked the accused to go and stay with her parents.

He was asked about the injury he saw on the body of the deceased; he remained adamant that he saw it.

Before he left the garden for the second time, he heard the deceased crying; from a distance, he saw her coming out of the house/hut, stood between two huts where there was a wreck; and, when he returned to the homestead, he was surprised to see her emaciated compared to the condition she had been.

Before the alleged assault, the deceased was healthy.

The State then called Assistant Inspector Herbert Chari.

His evidence is that the place where the deceased stayed is stony; there are both big and small stones. Under cross-examination, he stated that he saw the place where the deceased fell; if one hits against such surface one may sustain injuries. However, the place where the deceased finally fell was patchy grass. The stick allegedly used to assault the now deceased was given to the police by Gracious.

The State then called Constable Tinashe Chikomo, the investigating officer in this matter.

He drew the sketch plan which was produced by consent and marked exhibit number 2. He also produced the stub, exhibit number 3, the certificate of weight, exhibit number 4. He confirmed that the scene of the crime is rocky. The rest of his evidence is what he heard from State witnesses.

The last witness to be called by the State was Dr Blessing Zamba, a medical doctor.

He was called specifically to assist the court in explaining the medical terms of the postmortem.

The post mortem showed that there were no visible wounds or injuries. The skull indicated that there were no fractures, but, the left side of the brain showed that there was significant internal bleeding; there was clotted blood on the left side covering the entire side of the left side; the brain was swollen; the lungs were congested because of the nature of the injuries on the head; the head was hit against a hard object resulting in severe brain oedema.

For one to sustain that injury, severe force could have been used.

The post-mortem report was produced as exhibit number 5.

Under cross examination, the doctor was asked if the stick, exhibit 3, could have caused the injuries - he answered in the affirmative.

He further explained, that, depending on the degree of force used by the assailant, and also the vulnerability of the victim, yes, the stub could have caused such an injury on the head.

The haematoma was located on the left hand side of the head and a blunt object cannot be ruled out. He added, that, if a skull could have hit on a sharp edged stone, that sharp object could have ruptured the skull.

After the evidence of the medical doctor, the State closed its case....,.

The accused adopted her Defence Outline, confirmed warned and cautioned statement to form the basis of her defence.

She denies assaulting the deceased in any way.

She admitted most of the State witnesses evidence from the falling of Leon; her summoning of the husband from the garden; the return of the husband from the garden; the presence of Gracious Matiza at the scene; the sending of the deceased to fetch water; the order to drive the cattle; and the falling of the deceased on four occasions.

What she disputes is the assaulting of the deceased and the knowledge of the stick allegedly used on the date in question to assault the deceased.

The accused did not put a spirited challenge to the evidence that the deceased emerged from the house where she was crying and was seen by Godfrey Matiza crying.

The accused's counsel never challenged this crucial piece of evidence, the question that remains to be probed is: why was the deceased crying?

The next question for this court to decide is whether the accused assaulted the deceased leading to the injuries that ultimately caused the deceased's death?...,.

WHETHER ACCUSED ASSAULTED THE DECEASED

Joseph Matiza, the deceased's biological father, during his testimony, provided very essential information that explains the reaction of the accused.

On that day, the accused threatened to assault Leon with a stick. Leon ran towards the deceased, presumably seeking refuge or protection; the deceased evaded Leon's thrust and fell. The accused was not happy about the conduct of the deceased. She sent the deceased to go and call Joseph, the father, who was attending to his garden. Joseph heeded and went back to the homestead. He was told about the fall of Leon due to the conduct of the deceased. Joseph did not reprimand the deceased or comment on that. He went back to the garden.

After a while, Joseph Matiza heard the deceased screaming from the direction of the homestead. He immediately went back to find out the cause of the crying. He tried to call out the accused's name to find out what was happening but he did not get a response.

Upon arrival at the homestead, he observed Gracious Matiza standing at the wreck for plates. He then saw the accused carrying the deceased in her arms.

From the foregoing chronicle of events, we conclude, that, the accused was incensed by the fall of Leon, and, to her, the deceased had caused the accused's son to fall. When she saw that the father had not punished the deceased, she decided to punish the deceased by assaulting her.

Gracious Matiza, though of a tender age of eleven years, appeared extraordinarily calm to a rigorous cross-examination by the defence, but, she did not shake or prevaricate nor contradict herself. Her story is very clear:

Upon her return from where she had been sent by the accused, she saw the accused calling the deceased into the house. The accused was holding a stub in her hand. The deceased entered the house, and, immediately thereafter, Gracious Matiza heard the sound of beating, contemporaneously the deceased screamed and the accused was telling her to keep quiet.

Later, Gracious saw the deceased emerging from the house holding her head and back part of her waist crying.

The deceased was sent to go and fetch water. She obliged, albeit in pain, and still crying.

Gracious Matiza saw her falling on four occasions; the four occasions relating to the deceased's fall are confirmed by the accused in her Defence Outline.

At the time the deceased was sent to go and fetch water, she was weak, and, at one occasion, staggered after the first fall.

The defence contend, that, there was conflicting evidence on the part of the State witnesses; but, the accused seem to agree unreservedly on what transpired from the time the deceased left her (accused's) house after the assault.

The court is conscious to the fact, that, there is a single witness pertaining to what transpired at the house where the deceased was assaulted.

In the matter of David Worswick v the State SC27-88 the then Learned Chief Justice DUMBUTSHENA held that:

“Whenever the court considers and assesses the evidence of a single witness, its first duty is to examine his evidence critically. In this regard, it is salutary to pay attention to what DIEMONT JA, said in S v Sauls and Ors 1981 (3) SA 172 (AD) at 180E-G:

'There is no rule of thumb, test, or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider its merits and demerits, and, having done so, will decide whether its trustworthy, and whether, despite the fact that there are shortcomings or defects or contradiction in the testimony, he is satisfied that the truth has been told.

The cautionary rule referred to by DE VILLIERS JP in 1932 may be a guide to a right decision, but, it does not mean 'the appeal must succeed if any criticism, however slender, of the witnesses evidence were well founded' (per SCHREINER JA in R v Nhlapo AD 10 November 1952, quoted in R v Bellingham 1955 (2) SA 566 (A) at 569); it has been said, more than once, that, the exercise of caution must not be allowed to displace the exercise of common sense.'”

In the matter of SFW Group & Anor v Martel & Another 2003 (1) SA 11 (SCA) the technique generally employed by these courts, in factual disputes where there are two irreconcilable versions on the evidence, may be summarised as follows:

“To come to a conclusion on the disputed issues, a court must make findings on:

(a) The credibility of the witnesses. This depends on the court's impression, which, in turn, depends on a variety of subsidiary factors, such as -

(i) The witness candour and demeanour in the witness box;

(ii) His bias, latent and blatant;

(iii) Internal contradictions in his evidence;

(iv) External contradictions with what was pleaded or put on his behalf or with established fact or with his own extra-curial statements or actions;

(v) The probability or improbability of particular aspects of his version; and

(vi) The calibre and cogency of his performance compared to that of other witnesses testimony about the same incident or events.

(b) The reliability of the witnesses: this depends, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on -

(i) The opportunities the witness concerned had to experience or observe the event in question; and
(ii) The quality, integrity, and independence of his recall thereof.

(c) The probabilities: this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues.

In the light of its assessment of (a), (b) and (c), the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.

The hard case presumably rarely occurs when a court's credibility findings compel it in one direction and its evaluation of general probabilities in another. The more convincing the credibility findings the less convincing will be the evaluation of general probabilities. But, when all factors are equipoised, probabilities prevail.”

No one saw the accused assaulting the deceased, and, as such, the court has to rely on circumstantial evidence in this matter.

In the matter S v Reddy and Others 1996 (2) SACR 1 (A) the South African Appeal Court outlines the proper approach in circumstantial evidence as follows:

“In assessing circumstantial evidence, one needs to be careful not to approach it upon a piecemeal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true.

It is only then that one can apply the oft quoted dictum in R v Blom 1939 AD 188 at 202-3 where reference is made to two cardinal rules of logic: firstly, that the inference sought to be drawn must be consistent with all the proved facts; and, secondly, that the proved facts should be such that they exclude every reasonable inference from them, save the one sought to be drawn.

The fact that a number of inferences can be drawn, from a certain fact taken in isolation, does not mean that in every case, the State, in order to discharge the onus which rests upon it, is obliged to indulge in conjecture and find an answer to every possible inference that ingenuity may suggest any more than the court is called on to seek speculative explanations for conduct which, on the face of it, is incriminating.”

Having considered the facts and the law in this case, we have come to the conclusion, that, the accused's version, that the deceased sustained the injuries after falling on a stony area is improbable and not proved at all.

The mere presence of the rocky or stony surface does not necessarily mean that the deceased fell on the stone and got injured.

The deceased was assaulted by the accused, and, when she fell, she had been already injured in the head. The injuries detected by the pathologist were caused by the accused who assaulted the deceased on the head and back.

The accused's intention was to chastise the deceased. She however exerted great force in so doing.

We are unable to find the accused guilty of murder in these circumstances. The accused negligently caused the death of Merjury Matiza; she failed to realize, that, by assaulting the deceased on the head, using a blunt object, could result in her death.

Accordingly, the accused is found guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], Culpable Homicide, and Not Guilty of Murder.

HMT21-20 : STATE vs RAMSEY MAKONI
Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

The accused is charged with murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged by the State, that, on 14 May 2019, and at Mapinge Village, Chief Mutema, Chipinge, the accused unlawfully caused the death of Trust Muzvireki by striking him with wooden logs all over the body intending to kill Trust Muzvireki or realising that there was a real risk or possibility that his conduct might cause the death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Trust Muzvireki died.

The accused pleaded not guilty.

In his Defence Outline produced in court, Annexure B, he stated, that, on 14 May 2019, he went to the deceased's place of residence to follow up on his stolen property, namely, two mobile cell phones.

When he arrived at the homestead where the deceased was, he asked him to return the cell phones. A misunderstanding between them broke out. The deceased armed himself with a log and the accused disarmed him and assaulted the deceased, using the same log, leading to the deceased's bleeding.

The accused left the scene only to be informed of the passing on of the deceased later in the evening around 1900 hours.

He states, further, that, he did not intend to kill the now deceased and prays that he be acquitted of murder and be convicted of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act (the Code).

The State summary, Annexure A, states that the accused and the deceased resided in different villages but under Chief Mutema in Chipinge District of Manicaland. On a day unknown to the prosecutor, the two interacted over some cell phones which belonged to the accused. On 14 May 2019, the accused approached the deceased, who had paid a visit to his maternal aunt at Mapinge Village, and demanded his cell phones. When these were not availed to him, the accused became irate and started assaulting the deceased all over the body using clenched hands.

The deceased sought refuge in his aunt's kitchen, but, the belligerent accused pursued him and grabbed a log from the fireplace which he used to assault the deceased.

The accused went outside the kitchen and picked yet another log and used it to further assault the deceased all over his body rendering the deceased unconscious.

The deceased sustained multiple injuries from which he died.

The post mortem report No.104574C, produced by consent of the accused's defence counsel, and marked exhibit 3, shows that:

(a) Deceased's clothes were soaked in blood.

(b) There was a large laceration on the left cheek connecting skin and oral cavity.

(c) Large laceration behind the right ear exposing occipital scalp.

(d) The head had a depressed skull fracture.

(e) Bilateral compound tibial/fibula fractures.

Dr Makumbe concluded, that, the cause of death was exsanguination.

The following witnesses evidence was admitted by court in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]; Lucia Sithole, Trish Sithole, Timothy Mhlanga, Peter Chikukwa, Admire Kamangira, Tafadzwa Majachani and Dr Brian Makumbe.

The State applied to have the evidence of Alec Mashawa and Lewis Mlambo to be expunged from the State summary since they were not located.

In addition to the production of the postmortem report as exhibit 3, the State produced, by consent, the sketch plan, exhibit 1; the accused's warned and cautioned statement, exhibit 2; Log one was also produced and marked exhibit 4; log 2 was marked exhibit 5; the certificate of weight for the two (2) logs was produced and marked exhibit 6.

Lucia Sithole's undisputed evidence is that the deceased was her nephew. On 14 May 2019 she was at Maundwa Clinic to receive donations when the accused confronted her and accused her of accommodating a thief at her place. The accused indicated to her that he was going to the deceased in connection with his (accused's) phones.

Before the accused left, he threatened to collect her goats in lieu of the missing cell phones.

When she later got home that afternoon she found the deceased lying dead in a pool of blood in the kitchen. She also observed multiple injuries on the deceased's head, face, and limbs.

Trish Sithole is a juvenile who was at Lucia Sithole's homestead on 14 May 2019 when the accused and his colleagues arrived. Her evidence is similar to Nelly Mtetwa in all material respects.

Trish Mhlanga is a member of the constabulary. He is the one who apprehended the accused at Nditore Business Centre.

Peter Chikukwa works for Zimpost and based at Chipinge. On 6 September 2019 he weighed two (2) logs and compiled a certificate of weight.

Admire Kamangira is a police detail based at Chipinge Rural. On 14 May 2019 he attended the scene, and, upon arrival, he inspected the body of the deceased and observed that it had multiple injuries including a deep cut on the cheek. Nelly Mtetwa then identified to him two logs that had been used to assault the deceased by the accused; he recovered them. He witnessed the recording of the accused's warned and cautioned statement as well as the accused's indications.

Tafadzwa Majachani is sergeant in the Zimbabwe Republic Police stationed at Chipinge Rural. He is the investigating officer. He also observed the injuries on the deceased's body, he recovered the two (2) logs identified as the weapons used to kill the deceased. He recorded the indications and extra-curial statements of the accused.

Dr B Makumbe is a medical practitioner based at Chipinge District Hospital. On 27 May 2019, he examined the remains of Trust Muzvireki and he compiled a post mortem report no.104574C.

The majority of witnesses evidence having been admitted by the defence, the State called Nelly Mtetwa to give oral evidence.

She is 19 years of age and was the deceased's wife.

On 14 May 2019, she was at her maternal Aunt Lucia Sithole's homestead. Her aunt left for Maundwa Clinic. She later followed her. When she got to Maundwa Clinic, Lucia instructed her to go back to the homestead to go and call the deceased to come to the clinic to assist her to ferry her luggage. On the way back to the homestead, the witness saw the accused and two (2) other men following her. The accused spoke to her and chided her for marrying a thief. The accused told her that they were going to Lucia Sithole's place to collect their cell phones from the deceased.

The accused and Alec arrived at Lucia Sithole's homestead first. When the witness later on arrived, the accused and the deceased were seated at the entrance of the kitchen and talking about the cell-phones.

She heard the conversation between the accused and the deceased.

When the accused demanded delivery of the cellphones from the deceased, the latter informed the accused that the cell phones were with someone in town and the deceased will only hand over the cell phones to the accused if the accused pays the deceased the money he owed him.

When the deceased gave that response to the accused, the accused attacked the deceased.

Both stood up and a fight ensued; however, it was the accused who attacked the deceased first and the deceased fought back in defence of self.

None of the accused's friends restrained the pugilists.

When the accused saw that the deceased was having an advantage over him, he went into the kitchen, picked up a log, exhibit 4, and struck the deceased.

The person who went into the kitchen first was the deceased followed by the accused.

When the accused struck the deceased with exhibit 4, he went out of the kitchen and fetched the second leaner log, exhibit 5, and used it to assault the deceased.

At that juncture, Alec and his colleague ran away from the scene after realizing that the deceased had collapsed.

He then picked the first log and dropped the two of them outside the kitchen hut and went away. At the time the accused went outside the kitchen to pick exhibit 5, the deceased was lying on the kitchen floor lifeless.

According to Nelly Mtetwa, the accused delivered several blows on the deceased's body; some landed on the head others on the back and buttocks. Both logs were used.

The accused stopped the onslaught after realizing that the deceased was helpless and possibly dead.

She identified both logs to the police. When she finally went to the kitchen where he deceased was, she noticed that the deceased's body was in a pool of blood, one of his eyes was protruding out and his body was swollen.

Under cross-examination by counsel for the accused, she stated, that, at first, when she arrived at Lucia Sithole's homestead she saw the accused dragging the deceased going towards the kitchen. She also saw the two fighting from outside the kitchen into the kitchen; she was standing directly at the kitchen door. During the assault by the accused, the deceased did not retaliate, could not block, and never cried when he was struck. When the accused picked exhibit 4, the witness did not see the accused using it but heard sounds of beating inside the kitchen, she perceived a slamming sound.

After the testimony of this witness, the State closed its case.

The defence opened its case by calling the accused. The accused is aged 22 years and was 21 years at the time the offence was committed.

According to the accused, on 14 May 2019, he found the deceased at Lucia Sithole's homestead. He told the deceased that he had come to get his cell phones from the deceased. The deceased agreed to discuss the matter. Both walked to the kitchen hut.

He denied dragging the deceased.

Whilst at the kitchen, the two sat down. The deceased told the accused that he had sold the cell phones. The accused proposed to the deceased, that, the deceased should go with him to the place where he had sold the cell phones, but, the deceased told the accused that he did not have the identity of the people who had bought the phones. The accused then proposed, further, to the deceased, that, the deceased should accompany the accused to his place and given manual work to do so that he works towards realisation of the value of the cell phones. The deceased rejected the proposal.

The deceased stood up, attempting to run away, and the accused blocked his way.

The deceased pushed the accused away in order to find a way out and a fight ensued.

According to the accused, he fought back because the deceased had pushed him. The accused stated, further, that, the deceased, who was heavier than him, overpowered him. The accused's friends intervened advising the deceased to stop fighting the accused well knowing that he was wrong.

The deceased then dashed into the kitchen, picked up a log from the fire place. He used it to strike the accused on the left side of his body, around the shoulders. Alec held the deceased back and the accused got a chance to wrestle the log from the deceased's grip, and, using both hands, struck the deceased on the right cheek, then four times on the buttocks region.

When he struck him, the deceased was still standing.

The deceased then sat down and sought audience with the accused. At that time, the deceased was bleeding from the cheek. The accused advised the deceased that he would come back.

Later, he learnt that the deceased had passed on.

Under cross-examination by the State counsel, the accused admitted that he was angry with the deceased over the issue of the cell phones. He denied owing the deceased money.

The accused was asked why he stood by the door whilst the deceased was picking the log from the fireplace, and he told the court that he was afraid that the deceased would bolt out and escape from him.

He said that he sustained injuries from the assault perpetrated by the deceased.

When the deceased covered his head and cheek, the accused directed the blow on the thighs. The deceased was facing the walls covering his face as the accused was hitting him all over the body.

The accused does not dispute the findings of the doctor, as shown in the postmortem report, and that he is the one who caused such injuries.

He admitted that the log, exhibit 4, had a devastating impact upon landing on the head of the deceased. He broke the deceased's legs. He admitted that any blow to the head can cause death, but, he left him when he was still alive.

He also admits, that, when he saw the deceased bleeding he realised that he was going to die.

He was also asked why the aspect that the deceased struck him with a log does not appear in his Defence Outline and his response was that he had told his lawyer.

The evidence of Nelly Mtetwa was barely challenged by the defence.

The accused, during his testimony, continually evaded questions and changed his versions as each new question was put to him.

The accused had a bone to chew with the deceased over the issue of the cell phones.

When he went to the deceased's place, according to his own admission, he would not leave the place without a cell phone.

Right from time he arrived at Lucia Sithole's place, the accused was the aggressor. He dragged the deceased to the kitchen; he forced him to sit down; he blocked his way when he wanted to run away from the accused; when the deceased sought refuge in the kitchen, the accused blocked the deceased by the doorway; the accused attacked the deceased first before the fight; when the accused was being overpowered, he pulled a log and struck the deceased on the cheek, then the head, waist, and the legs.

When the deceased was defenceless, the accused continued to pound on the deceased's body.

At the time all these blows were relentlessly rained on the deceased, the deceased did not cry, retaliate, nor pose any danger to the deceased. The deceased acted like a sheep going to a slaughter and the accused was the assailant.

We are satisfied, that, given the nature of evidence of Nelly Mtetwa, the accused was the aggressor throughout – the deceased only reacted in self-defence.

The accused deliberately chose to hit the deceased on the head using a log 99cm long with a top end circumference of 23cm, and bottom circumference of 26cm, weighing 2,225kg on the head using both hands; he also used log 2 measuring 134cm long with a top end circumference of the same length weighing 2,200kg.

The two (2) logs are very lethal, and, given the nature of injuries sustained by the deceased, great amount of force was used by the accused.

There were deep lacerations on the occipital scalp; broken jaw; broken limbs; and, the deceased lost a lot of blood due to the injuries perpetrated by the accused.

We are satisfied, that, the accused had the necessary mens rea and actus rea to cause the death of Trust Muzvireki, and, accordingly, he is found guilty of murder with actual intent.

HMT27-20 : STATE vs LLOYD MAHOVANA
Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

The accused is charged with murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged by the State, that, on the 13th of June 2019, the accused caused the death of Nobody Kadeya by stabbing him with a knife, multiple times, intending to kill him 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 injuries from which Nobody Kadeya died.

The accused pleaded not guilty and stated, in his Defence Outline, that, he acted in defence of self against a vicious and imminent attack by a heavily intoxicated police officer, the now deceased.

He added, that, he acted on the spur of the moment to save himself from an unlawful attack as a result of strangling from the deceased.

On 13 June 2019, the accused denies partaking alcohol. He stated that he does not drink beer. He was approached by the deceased who informed them that he was under arrest for drinking illicit brew. The deceased ordered the accused to accompany the deceased to Chibuwe Police Post and the accused refused to go on the basis that he was not drinking the illicit brew.

The deceased insisted that the accused should go to the police post and pay a deposit fine or the accused was going to sleep in the police cells.

According to the accused, he had never seen eye to eye with the deceased and the deceased was always jealousy of the accused.

The deceased started to strangle and choke the accused. Eric Murire reprimanded the deceased and pushed him away from the accused. A police detail came and helped to calm the situation. The deceased then gave his car keys to the police officer and instructed him to take his car to the police post. The deceased then pushed the accused's wheelchair and pushed it into a pothole. The wheelchair automatically locked the wheel and the deceased fell to the ground.

Upon getting up, the deceased was infuriated and stated that he was going to assault the accused.

He started strangling the accused, the accused struggled to breathe. Panganai Dzvairo then threw a knife on the accused's lap. The accused took the knife and stabbed the deceased on the arm. The deceased did not stop strangling the accused; the accused stabbed him a second time, on the chin. The deceased did not let go the accused; the accused then stabbed the deceased for the third time, on the chest; the deceased then loosened the strangle and got off the accused, walked about five metres and collapsed. The accused left the scene of the stabbing; on his way home, the knife accidentally fell from his lap.

He prayed for his acquittal.

The summary of the State states, that, the deceased was a police detail stationed at Middle Sabi. He was attached at Chibuwe Police Post on 13 June 2019; the deceased was on his way home and passed through Chibuwe Business Centre, when he observed the accused, Eric Murire, and Panganai Dzvairo drinking home made opaque beer from a five litre container.

The deceased declared to the trio that they were under arrest for possession and imbibing an illicit brew. The deceased invited all the three to the police post to pay guilty fines. The accused protested, he also shouted at the deceased, but, later, agreed to go to the police post.

The deceased pushed the accused's wheelchair; after a short distance, the accused locked the wheelchair wheels knocking the deceased off balance. The accused then drew a knife and stabbed the deceased on the chin, upper arm, and chest rendering him unconscious. He then disappeared into the night.

The post mortem report concluded that death was a result of penetrating chest trauma.

The State applied to dispense the calling of Joyce Munaiwa, Talent Mucharevei, Douglas Madzura, Tinashe Nyamasunda, and Dr Takunda Leonard.

The defence consented.

Also by consent, the post-mortem report, confirmed warned and cautioned statement, the Mouser 440C knife and its certificate of weight were produced.

Most facts in this case are common cause.

On 13 June 2019, the deceased found the accused and his colleagues at Chibuwe Business Centre; the latter were imbibing an illicit brew commonly referred in local Chibuwe area as “one-day” and the deceased placed them on arrest.

He invited them to the police post, but, the accused openly dared the deceased who was in police uniform.

The deceased then gave his car keys to a colleague and opted to push the deceased's wheelchair to go to the police post. On the way, the accused told the court, that, because there was a pothole where the wheelchair was wheeling towards, he locked the wheel of the wheel chair and that provoked the deceased who then strangled the accused.

The accused's version is that he acted in defence of self.

On the other hand, the State alleges to the contrary.

The State's side of the story is that the accused did not act in defence of self but deliberately locked the wheels of the wheel-chair knocking off the deceased, and then the accused stabbed the deceased.

So, the locking of the wheels and the stabbing of the deceased on three places of his body are issues of common cause.

The question for determination is whether the accused acted in defence of self or not.

The State called Delence Sibiya.

On the night in question, he observed the deceased pushing the accused's wheelchair; the deceased's body was resting on the wheelchair and the witness was plus or minus four metres from where the deceased and the accused were.

The two then moved away from the crowd, ten (10) metres away, according to Delence Sibiya; the wheelchair was going towards the car.

The witness then told the court, that, he saw the accused producing a knife from his attire on the front of the position the accused was seated, and, without warning to the deceased, stabbed him.

The stabbing, according to the witness, occurred when the deceased was pushing the wheelchair.

After the stabbing, the accused uttered words to the effect, that, he had finished with the deceased.

The witness identified the knife as belonging to the accused.

Panganayi Dzvairo did not see the stabbing of the deceased by the accused; however, the knife used belonged to the accused according to this witness. Panganayi Dzvairo also told the court, that, he heard the accused uttering words to the effect, that, he had finished with the deceased.

He denied throwing the knife to the accused; he did not witness the deceased throttling the accused which could have prompted the witness to throw the knife at the accused's lap to help himself.

The knife belonged to the accused, for the accused had always moved with that knife.

On the issue of the knife, Brighton Mataure Mhlanga told the court, that, he observed the accused producing the knife from his satchel and placing it on his lap.

The accused, in his defence, stuck to his Defence Outline. He did not call any defence witness.

The defence submitted, that, the accused found himself in a precarious situation; the accused was in a wheelchair and was helpless. He only acted to defend himself; he was throttled, almost suffocating, and stabbed the deceased.

The defence added, that, the accused was under attack by the deceased and took an immediate defensive measure; he had no time to ponder upon what weapon to use. Further, his situation was compounded by his disability; being on a wheelchair, he was vulnerable, and could not defend himself. Hence, it was argued by the defence, that, the accused used a knife intending to protect his life.

The State submitted, that, the accused did not meet the requirements of section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9.23] to satisfy the defence of self.

It submitted, that, the deceased was doing his work as a police detail. The accused resisted arrest and refused to go to the police post. The State further submitted, that, the accused actually removed the knife from a satchel at the back of his wheelchair and placed it on his lap. He allowed the deceased to push the wheelchair, the accused then suddenly brought it to a stop and then stabbed the deceased.

Having critically examined the evidence of both the State and the accused, we have come to the conclusion, that, the accused failed to establish the basis for a defence of self.

The accused was at Chibuwe Business Centre with his friend, Panganayi Dzvova; the accused was carrying a 5 litre plastic container of an illicit brew and was seen imbibing it from a cup. The deceased arrested the accused and told him to go to the police post. The accused resisted, and, according to him, the accused, he was not willing to go to the police post and cause to be detained in holding cells.

In our view and conclusion, the accused had all the reason to be angry with the deceased.

The deceased had nothing against the accused other than that he (deceased) had seen the accused committing an offence; the accused pretended that he had changed his mind in order to co-operate with the deceased, but, then, the deceased did not read the accused's mind well. The accused deliberately withdrew from the madding crowd and allowed the deceased to push the wheelchair to an isolated place. He further nonchalantly locked the wheelchair wheels to draw the deceased violently.

The accused was highly incensed by the deceased's arrest, and, sensing that the deceased was going to detain him, he resolved to stab the deceased using a knife.

Although one cannot say the stabbing was generally pre-planned; from the time he took it from the satchel and placing it on his lap, he had resolutely decided to use it to stab the deceased.

He chose an opportune moment, at a dark place, and chose particular positions to stab the deceased.

The stabbing of the deceased, on the upper part of his body, was ruthless and brutal. The upper body of a human being hold very vital organs of the body. No wonder the blow on the chest of the deceased damaged the breast and the lung. The chest and the lung are separated by a lean membrane, and, the use of the lethal weapon on a defenceless police detail was unavoidably fatal.

The accused was not under any attack from the deceased; his version is totally fanciful and fathomed.

In our view, the accused wanted to create a dire situation premised upon his disability and use it as an excuse to stab the police detail.

From the evidence before us, we fail to see any factual basis why the deceased could have wanted to strangle the accused to death. Instead, it was the accused who wanted to deal with the deceased who was forcing the accused to go to the police post.

We also dismissed the accused's version on the basis, that, the accused's confirmed warned and cautioned statement, produced before us, does not allude to the fact of the deceased strangling the accused.

The accused spoke of the deceased grabbing his shirt collar.

The accused was at pains to explain the two statements in court.

We also failed to find an explanation from the accused why his own colleagues could lie against him about the knife.

The accused could not explain why he could have uttered words to the effect that he had finished with the deceased.

The admitted evidence of Talent Mucharwei is to the effect, that, he found the accused's wheelchair stuck in the sand after the accused had stabbed the deceased. He was told by the accused that he (accused) had stabbed someone at the shops. The accused produced the knife and showed it to the witness; the accused then threw away the knife into the bush.

He did not tell Talent Mucharwei that the knife belonged to Panganayi Dzvairo or that he had been strangled by the victim of the stabbing.

We thus concluded, that, the issue of the defence of self, more particularly that the deceased had almost choked the accused to death is an afterthought and we reject it.

The accused viciously stabbed the deceased on the left side of the chest, a vulnerable part of the human anatomy housing heart and lungs. He plunged a lethal sharp weapon with sufficient force to cause death.

Indeed, the deceased collapsed barely five (5) metres from the point where the accused had stabbed him.

The accused was not acting at the spur of the moment, he was not under any unlawful attack nor under any imminent danger but intentionally assaulted the deceased for causing him to leave the bar and detain him at the holding cells.

We are satisfied that the accused has the pre-requisite mens rea to commit murder and stabbed the deceased on a vulnerable part of the body.

Accordingly, the accused is found guilty of murder with actual intent.

HMT32-20 : THE STATE vs KUZIVA MUKUNGUMA
Ruled By: MWAYERA J and ASSESSORS: CHIPERE and MUDZINGE

The accused pleaded not guilty to a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged, that, on 19 April 2019, at around 2100 hours, and at Village 26, Mount Zonwe, Odzi, the accused person stabbed the deceased thrice on the left arm, abdomen, and left side of the chest with a bayonet knife intending to kill him or realizing that there was a real risk or possibility that his conduct might cause the death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Agent Mukunguma died.

The remains of the deceased were taken for post mortem and Dr Chibowa compiled a post-mortem report, tendered as exhibit 1 by consent. The doctor observed wounds and concluded, that, cause of death was massive haemothorax chest trauma.

The accused, in his Defence Outline, denied having an intention to kill the accused at all.

The accused pointed out, that, they had spent the greater part of the day together with the deceased drinking beer. Upon their return home, that is when an argument ensued when the accused threatened to assault his wife after she served sadza. The two engaged in a fight, and, when the deceased took stones, the accused then took a knife to scare off the deceased. The fight continued until one Simbanai Mawoyo restrained and the deceased escaped.

The accused was however undeterred so he followed and the fight continued. It was then that the accused started to stab the deceased in self-defence.

Worth noting at this stage is the accused's confirmed warned and cautioned statement, exhibit 2, in which the accused admitted stabbing the deceased with a bayonet knife while the two, who were drunk, were fighting.

In the warned and cautioned statement, there is no mention of use of stones by the deceased.

Also tendered in evidence, by consent, was the sketch plan, exhibit 3; the certificate of weight of the bayonet knife, exhibit 4; and the bayonet knife itself, exhibit 5.

The State relied on evidence of 14 witnesses, two (2) of whom gave oral evidence while the other 12's evidence was formerly admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Beaulah Mutoma, the wife of the accused, gave oral evidence to the effect, that, the accused and the deceased, his nephew, engaged in a fight. The fight was occasioned by the efforts to intervene made by the deceased in an attempt to stop the accused from assaulting his wife, the witness.

The witness's account was that the accused was violent on the day in question as he would physically lift her and then throw her on the ground over an issue of the quantity of sadza.

The witness, who was visibly bitter and keen on seeing the accused punished, exaggerated her testimony.

She sought to convince the court, that, she observed the first fist fight and then remained in attendance and watching while the accused was armed and striking the deceased with a bayonet knife.

Despite pointing out that she fled with her children, she sought to paint a picture that she witnessed the accused strike the deceased who had fled to his home.

Further, she stated that she also witnessed the tobacco field slashing of the deceased and the striking at the homestead.

The witness sought to have the court accept that she was everywhere, and that, despite the darkness of the night, she had a vivid picture of how the accused struck the deceased.

She did not hide her desire to have the accused punished and nailed for his violent conduct.

She could have done better as a witness if she had maintained an honest stance as opposed to being vindictive and thus exaggerate the testimony.

We did not take the witness as entirely credible.

What we deduced from the bitter witness's testimony is that the accused and the deceased engaged in a fraca because the deceased sought to stop the accused from assaulting his wife, the witness. Her overzealous manner of testifying is understandable when one considers the manner of assault perpetrated on her; that is, being raised and thrown to the ground.

To correspond with what the witness stated, the accused was generally of violent disposition and that he was in the habit of violently abusing her.

She obviously was not candid with the court when she stated that she observed each and every stage and blow of the fight; but, we cannot ignore the common cause aspects, particularly that the accused and the deceased engaged in a fight and that the accused stabbed the deceased with fatal consequences.

Shylet Manyanga's evidence, which was formerly admitted, was essentially as follows:

She was married to the deceased, and the accused is a brother to her father in law. The deceased proceeded to the accused's homestead, reacting to the accused's wife's scream for help since the accused was assaulting her. The witness also followed and found the accused and the deceased fist fighting. The fight was stopped by one Simbanai Mawoyo and Pirato Machingura.

Later, the deceased went back to look for his shoe and a fight erupted in the tobacco field.

She then heard her husband scream - he had been stabbed. She observed him bleeding from the arm and abdomen.

The deceased then followed the accused at his homestead requesting him to finish him off. It was then that the accused stabbed the deceased in the chest and he instantly fell to the ground whereupon he died.

The third witness, Simbanai Mawoyo's evidence was formerly admitted:

It was essentially, that, the accused and the deceased were earlier drinking beer together. They went home together with the witness. After the accused's wife served the two with sadza, he together with the deceased, left the accused's homestead and parted ways. He later heard screams from a female voice from the accused's homestead. This prompted the witness to rush to the scene whereupon he observed the accused fighting with the deceased while one Pirato Machingura was restraining.

After restraining, the two dispersed and everyone went home.

After a while, the witness heard the accused and the deceased at it again, shouting. This time, the two were now in a tobacco field. He heard the deceased shouting words to the effect, that, he had been stabbed with a knife by the accused. The deceased had injuries in the abdomen and on the arm.

The two protagonist were unstoppable as they returned to the accused's homestead.

Straight, thereafter, the accused shouted he had stabbed the deceased and was going to report himself to the Village Head.

The witness observed the deceased lying dead on the ground with blood oozing from the chest.

The fourth witness, Pirato Machingura, gave oral evidence:

His evidence tallied with Simbanai Mawoyo's evidence on all material respects.

The witness stopped the fist fight between the accused and the deceased. He, together with Simbanai Mawoyo, tried to stop the second fight in the tobacco field, but failed. The accused, who was armed with a knife, was violent, occasioning the first stab wound in the arm and abdomen, and, finally, back at the homestead, a stab wound in the chest.

The witness gave evidence well and his manner of testifying was beyond reproach.

The fifth State witness, Calvin Muperekedzwa, a neighbour to the accused, had his evidence formerly admitted:

He was drawn to the accused's residence, just like the other witnesses, by screams from the accused's wife. The accused could not accept his efforts to stop him from assaulting his wife, so he went back to his homestead. Later, the accused's wife and children approached his homestead seeking refuge. He later learnt about the death of the deceased, whose body he observed in a pool of blood at the accused's homestead....,.

The accused was the only witness in the defence case.

His evidence on common cause aspects was essentially similar to the State witness. Although he was none committal on the root cause of the fight, it was apparent he was involved in a fight with the deceased.

The accused, in giving evidence, could not successfully dodge the obvious, that, he was generally violent on the night in question. He was violent against his wife who raised alarm and three State witnesses came to assist, to no avail, as the violence continued.

The deceased also came in to assist and the violence turned nasty, resulting in the deceased being fatally stabbed.

Given the obvious sequence of events of the night in question, that, the accused stabbed the deceased, is not in dispute.

It is common cause the uncle and nephew, who had spent the day drinking together, engaged in three fights:

(i) The fight was as a result of the deceased trying to intervene to stop the accused from assaulting his wife, initially it was a fist fight.

(ii) The second fight was in the tobacco field; this time, the accused was armed with a bayonet knife and he stabbed the deceased on the arm and the abdomen.

(iii) The third and last fight was when the accused stabbed the deceased in the chest.

The question that falls for determination is whether or not when the accused stabbed the deceased he unlawfully stabbed with an intention to kill.

The offence which the accused is facing has to be proved beyond reasonable doubt by the State. The State has the onus to prove that both the actus reus and mens rea were present for a charge of murder to be sustained: see S v Lovemore Kurangana HH267-17 and S v Mugwanda 2002 (1) ZLR 57.

The accused sought to rely on self-defence, a defence provided for in the section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

A close look at the sequence of events on the day in question shows that the requirements of the defence cannot be met.

For one to successfully rely on this defence, it must be shown, that, there was an unlawful attack or imminent attack which the accused sought to defend himself from. Further, that there was imminent danger to life which could not be averted in any other manner. The means used to avert the attack has to be proportionate for one to successfully plead self defence.

In the circumstances, the defence crumbles for the obvious reason, that, all the requirements cannot be met: see S v Best Sibanda HB139-19 and also S v Mabvumbe HH39-16.

Given the common cause aspects, the actus reus component needs no further discussion.

From the evidence adduced, the first fight was a fist fight. None of the State witnesses observed the deceased being armed in any manner. In fact, it is the accused who was unrelenting on his attack on the deceased.

The accused took issue with being restrained from assaulting his wife. He armed himself with a bayonet knife which he collected from his bedroom. The accused proceeded to stab an unarmed man, the deceased, in the tobacco field.

Even if it were to be accepted that the deceased threw stones, as alleged by the accused, an assertion never confirmed by all the State witnesses, the use of a bayonet knife was clearly disproportionate.

When the final blow was delivered, in the chest, the accused was aware the deceased had been injured in the arm and abdomen, as he exclaimed he had been injured, and, in agony, uttered words to the effect that the accused should finish him off.

The deceased was badly wounded and not a threat at all to the accused.

The accused, without hesitation, and oblivious to Simbanai Mawoyo and Pirato Machingura's efforts to restrain, directed his blow to the deceased's chest.

In fact, at that stage, the accused was faced by a helplessly injured man.

There is no basis, therefore, to argue he was defending himself as he was not under threat; as such, the defence cannot be sustained.

The other thinly veiled defence, of intoxication, was properly not pursued but just mentioned in the Defence Outline.

It was evident, during cross examination of the accused by the State counsel, that, although the accused had partaken alcohol, he was in full appreciation of what was going on.

In any event, voluntary intoxication is not a defence.

As a witness, the accused did not fare well as both suggested defences could not be supported - even from the accused's own narration.

The evidence adduced spoke volumes to the unlawful conduct of the accused causing the death of the deceased.

From the totality of the evidence, the accused did not set out with an aim to kill and proceeded to kill the deceased. From evidence adduced, it is crystal clear that the accused inflicted three blows with a knife on the deceased. The last blow was aimed on the chest and it had instant fatal consequences.

The manner and nature of assault, coupled with the weapon, a bayonet knife, speaks volumes to mens rea.

The accused subjectively foresaw the possibility of his conduct, of stabbing the deceased, causing death, but, was nonetheless reckless as to the outcome.

That recklessness denotes intention.

In the case of S v Lloyd Mukukuzi and Another HH577-17 the court made pertinent remarks commenting on intention that:

“It is the reckless disregard of the risk associated with their conduct which provides necessary mens rea in the case of specific intent crime like murder.”

Given the realisation and recklessness, of stabbing with a bayonet knife, in the chest, both the actus reus and mens reas have been proved beyond reasonable doubt.

Legal intention, in the circumstances of this case, can easily be inferred from the manner of attacking, the body part attacked, and the weapon used: see S v Mema HB143-13.

In this case, the intense attack, with a bayonet knife, occasioning three stab wounds, speaks volumes to the vicious nature of attack. Such an attack denoted the attacker had an intention to kill, for it was foreseeable death will occur.

Accordingly, the accused is found guilty of murder with constructive legal intention as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act.

HMT33-20 : STATE vs ANESU MAFOKOSHO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

The accused pleaded not guilty to a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code); in which it is alleged, that, on 24 December 2018, at House Number 1892, Chikanga 2, Mutare, the accused unlawfully caused the death of Vitalis Mudhumo by striking him with an axe on the neck, several times, intending to kill the said Vitalis Mudhumo or realising that there was a real risk or possibility that her conduct might cause death and continued to engage in that conduct despite the realization.

The brief allegations forming the basis of the charge are as follows:

The deceased and the accused were husband and wife respectively. They were on separation, and had one minor child.

On the fateful day, the enstranged couple took their daughter for shopping in town. Upon their return, when the couple entered their bedroom, an argument ensued, culminating in the accused hacking the deceased several times with an axe at the back of the neck thereby killing him instantly.

The deceased died as a result of excessive external haemorrhage.

The accused, in her Defence Outline, did not dispute the factual allegations leading to the striking of the deceased on the neck with an axe. She however contended, that, she had no intention, actual or legal to kill the deceased.

The accused's defence was that she, without giving thought, struck the deceased, whose utterances, inclusive of announcement that the marriage was over, pierced her heart and shattered her dreams.

The accused's defence was that she looked up to the deceased, her husband, as her life support, and pinned all hopes on him given her poor background.

The deceased, instead, after marrying her, started dating other women, and, on the fateful day, among other insults, he announced, that, the other city woman he was dating was better than her in all exploits. The insults, and thought of losing her marriage, enraged her extensively and she was gripped with the irresistible impulse to hurt the deceased whom she then struck with an axe and he died.

The accused, in summary, attributed the commission of the offence to the effects of the poor childhood background and the traumatic, and abusive marriage.

She insisted she had no intention, actual or legal, to murder the deceased.

In closing submissions, the defence sought to rely much on the defence of extreme provocation sufficient to reduce the specific intent crime of murder to a non-specific intent crime of culpable homicide.

The accused was the only witness who testified in the defence case.

The State, on the other hand, adduced evidence from 10 witnesses, of which five (5) gave oral evidence while the other five's evidence, which was on common cause aspects, was admitted formerly in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

George Sithole, a member of the Zimbabwe CID Scenes of Crime Department's evidence was basically, that, he attended the scene and observed the deceased body in a pool of blood. He observed five (5) deep cuts on the back of the deceased's head. He recovered the murder weapon, a metal axe tendered as exhibit 2.

The witness was also involved in taking photographs at the scene on the fateful day, and, later, when the accused made indications. Photographs marked as exhibit 4A1–A5 by consent.

The witnesses evidence on his observation of the lifeless body of the deceased on the bed was confirmed by Ivy Mutsago, another police detail who also attended the scene.

The evidence of the details was similar to that of Joel Rukara, a police detail who also attended the scene.

The investigating officer, Loyce Chokani's evidence detailed how she investigated the matter, made follow ups, and arrested the accused, who was, by then, at her rural homestead in Chigodora.

The witness recorded a warned and cautioned statement from the accused. She also drew a sketch plan, exhibit 2, as per indications from the accused and witnesses.

The witness also caused the metal axe, the murder weapon, to be weighed by the Post Office officials.

The investigating officer's evidence was not contentious, and it was formerly admitted.

Also formerly admitted was evidence of Kiven Matengera, who weighed the axe and compiled a certificate of weight recorded as exhibit 3 by consent. The metal axe weighed 4.030kg.

Mollen Mafokosho, a sister to the accused, gave oral evidence.

Her evidence was straight forward and clear.

She could hear that the accused and the deceased, who were in the confines of their bedroom, were arguing but could not discern the nature of the argument. She took the couple's child outside. Whilst outside, she overhead the deceased call his nephew, Trouble Chivasa, to come to his assistance since the accused had locked him in. According to the witness, the accused later came out holding a container of water and went out of the campus leaving instruction that the witness should take care of the child as the accused was visiting a friend.

After about 10 minutes after leaving the house, the accused called on the mobile phone and instructed the witness to get inside her bedroom and see what the accused had done.

Upon entry, the witness, just like the attending police details, observed blood on the floor, bed, and wall while the deceased's lifeless body was on the bed.

She then alerted the landlady and Trouble Chivasa of her observations.

The witness gave her evidence well. Although she was shocked by the horrendous attack, she gave evidence with clarity considering she was a juvenile.

Trouble Chivasa is an uncle to the deceased by virtue of marriage to the deceased's aunt, Mavis Chivasa, also gave oral evidence.

He confirmed receiving a call from the deceased on the fateful day and further being alerted, by Mollen Mafokosho, of what had happened. The accused also phoned the witness disclosing that she had killed the deceased.

The witness confirmed, that, the accused and deceased relationship was no longer cordial as the accused tended to be of violent disposition, and that, on occasions, the relatives had stepped in to assist but the relationship appeared to be on a sliding slope, culminating in the deceased moving out of the rented matrimonial home.

The witness did not witness the actual killing of the deceased.

His evidence was clear, that, the couple's relationship was no longer good hence the separation.

The witness was sincere with the court in the manner he testified, even under cross-examination by the defence counsel.

Lucia Vhurandi, the landlady, also testified.

She knew both the accused and the deceased. She was alerted of the fatal attack of the deceased by Mollen Mafokosho, whereupon, she proceeded to the bedroom and observed the deceased's body. The witness told the court that the deceased was generally quiet and she could only see him on rare occasions. From her observation, going by the mode of dressing and lifestyle, the accused was well catered for by her husband. She had never, in the past, witnessed the couple engage in volatile exchanges, verbal or physical.

The accused had also never shared with her that she was tormented physically, emotionally, and financially. All appeared well.

She denied having witnessed the accused engage in firewood selling business when it was suggested by defence counsel. She actually stressed, that, at the relevant period, there was no power outage such that firewood was not necessary.

The witness was viewed as a candid witness by the court.

She was shocked by the gruesome attack, as evidenced by her narration of observations of the cuts on the head, but, clearly, had no motive to mislead the court. We accepted her evidence wholesome.

Mavis Chivasa, an aunt to the accused and wife to the second State witness, Trouble Chivasa, also gave oral evidence.

Her evidence was basically, that, she received a call from the deceased alerting her that he had been locked indoors by the accused. She advised the deceased to contact Trouble Chivasa. She later got a call from the accused informing her that she had killed the deceased.

The witness confirmed, that, the couple's relationship was acrimonious and that the relatives had intervened to restore normalcy but to no avail. The couple was, at the relevant time, on separation.

The witness was visibly angry and emotional about the death of the deceased to the extent of, at times, failing to answer questions and insisting on getting an explanation why the accused killed the deceased.

This emotional stance, however, did not cloud the common cause factual aspects, that, the accused and the deceased were no longer enjoying good relations as husband and wife and thus were on separation.

The accused person, as a witness, did not deny striking the deceased severally and severely in the head, as observed by all witnesses, inclusive of the Doctor, Stephen Murahwa, who also compiled the post mortem report, exhibit 1.

She however sought to portray that she was tormented and physically, emotionally, and economically abused over a stretched period with the result of losing it and striking the deceased with an axe, culminating in his death.

The accused, as a witness, did not fare well as she came up with diverse explanations of possible pressure mounting on her leading to psychological breakdown.

She painted a picture that she was raised from a very poor background and that the poverty had a bearing on her such that when she found the deceased, who had a good and stable income, she believed salvation had come.

Contrary to her assertion that she was from a very poor background is the obvious evidence, from her, that, her father was employed and in town while the mother and children where in the communal area working in the fields.

The evidence of the sister, Mollen Mafokosho, is clear on the social standing of the family.

In fact, even the accused did not believe in her suggestion of the poverty, as she dreaded and was very apologetic to appear like insulting the father for alleged poverty.

In short, we observed that the accused was exaggerating the poor background, which, when all evidence is considered, was fictitious.

She grew up in an average rural family like most citizens in the communal area. There is nothing weird about doing piece work and working in the fields.

She further suggested trauma because of earlier breakups.

Having had affairs in the past and termination thereof, again, is a normal phenomenon of growing up into manhood or womanhood.

These exaggerations, of adverse childhood experiences and imagined poverty were not taken as having caused the accused to hack the deceased.

To that extent, we viewed the accused's explanations as not only being false but as lacking sincerity.

The building up of psychological trauma, having triggered the commission of the offense, again faces a challenge when one considers events immediately before the hacking.

The deceased went for Christmas shopping for the couple's child. It is common cause the accused, her sister, the child, and the deceased went together. The accused was not ready to accept anything for herself and offered that her sister gets items bought instead.

The couple was not on talking terms, as the accused was not willing to accept gifts.

When they got back home and the accused invited the deceased indoors: whilst inside, the accused locked the bedroom door. The axe was pulled from under the bed by the accused, and the deceased, who was fiddling with his phone, was struck, giving a picture of him least expecting the attack.

The axe was already in the bedroom, as if placed there in anticipation of the eventual use.

We discarded the accused's story that the axe was for chopping firewood, a business enterprise, not only because the land-lady did not witness the sale, but, also because there was no basis for keeping the axe under the bed.

These events, immediately before the fatal blows, disrupt the alleged sudden trigger of loss of self-control and depicts a clearly thought out process.

It emerged, as the trial progressed, the accused seemed to have abandoned psychological disintegration at the time of commission of the offence for lack of scientific evidence: see S v Stephen 1992 (1) ZLR 115 HC and also S v Chikondiwa HH281-17 wherein HUNGWE J…, discussed the issue of onus on the accused to prove mental incapacitation, remarked that:

“In discharging the onus upon it, the State is assisted by the natural inference, that, in the absence of exceptional circumstances, a sane person who engages in conduct which would ordinarily give rise to criminal liability does so consciously and voluntarily. Common sense dictates before this inference will be disturbed, a proper basis must be laid which is sufficiently cogent and compelling to a reasonable doubt as to the voluntary nature of the alleged actus reus.”

See also S v Stephen 1992 (1) ZLR 115 HC and S v Pamela Mashungu HH357-13.

The common thread that runs through the cited cases is that where a plea of diminished criminal liability is raised, on the basis of overwhelming severe psychological and emotional stress, the medical and/or scientific evidence to support such assertion must be availed failing which the inference of sanity must prevail: see S v Ticket 1973 (3) SA 526; R v Romeo 1991 (1) SCR 86; and R v Chalk 1990 3 SCR 1303.

The accused is presumed sane until the contrary is proved.

In casu, the accused, as trial progressed, and in closing submissions, on realization of lack of scientific evidence, shifted more to excess provocation as having triggered the hacking of the deceased.

The defence of provocation, which the accused sought to rely on, is not a complete defence, but, rather, a partial defence which would reduce the conviction to culpable homicide in the event of the court holding, that, the provocation was sufficient to occasion momentary loss of self control thus rendering the individual incapable of having the requisite intention, actual or legal.

Section 239 of the Criminal Law (Codification and Reform) Act (the Criminal Code) provides as follows:

“If after being provoked a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case maybe, with the intention or realisation referred to in section forty-seven, 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 realization 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 partial defence is clearly available in circumstances where the provocation is sufficient to negate intention.

Where an individual has been subjected to provocation to the extent of temporarily losing self-control and thus not capable of formulating intention or realising the possibility of real risk, then, the partial defence ought to be sustained.

However, in the absence of extreme provocation vitiating intention, the defence cannot be sustained: see S v Best Sibanda HB139-18; George Isiga v The State AD 77/76; and S v Stephen 1992 (1) ZLR 115 H.

Ordinarily, therefore, for this defence to hold, one ought to have been provoked and react spontaneously to the provocation. The reaction has to be on the spur of the moment such as to exclude room for reconstruction and consideration of events and then rising to react with clear thought and/or realization.

Where there is room for formulation of intention, as in this case, where there was no instant spontaneous reaction to provocation, the defence cannot be sustained.

A close look at the evidence reveals, that, on the fateful day, it was not the first time the couple had fallen out. Even the news of breaking up was not new as the parties had previously, on numerous occasions, sought counsel with relatives but failed to reconcile.

The accused was angry over the impeding breakup, but, that does not amount to excessive provocation leading to loss of self-control.

In breaking up, just like falling in love, the deceased was exercising his right and freedom of association; and, such cannot warrant loss of self control.

Upon considering the totality of the evidence and the events of the day in question; the couple's relationship was no longer cordial; they were on separation; the metal axe, a lethal weapon, was put in the bedroom beforehand; the gestures to buy clothes for her by the deceased were turned down as the accused was clearly angry; once back at home, the accused invited the deceased indoors, in the bedroom in which the axe was; whilst inside, an argument ensued and the accused locked the deceased inside.

It is not in contention, that, the deceased called his relatives to come to his rescue as he had been locked in.

Assuming the deceased had shown the accused photos of his new lover, it was not any news to the accused as she already knew this woman by name. In fact, the accused told the court, that, she was shown ordinary photographs of his other woman and not that she was shown obscene pictures or pictures of the woman and the deceased in a compromised position.

The situation is certainly distinguishable from a scenario where a spouse catches their spouse in flagrante, and, on the spur of the moment, lose it and attack with the loss of mind reducing liability to culpable homicide due to lack of intention.

In this case, the accused built up tension within herself and took the opportune time to strike, in revenge, when the deceased least expected, as he was struck while fiddling with his phone seeking rescue having been locked in.

There is no evidence, even from the accused, that, the deceased defended himself, as the event was impromptu and vicious on an unsuspecting individual.

The vicious attack was targeted on the neck and head.

Going by the weapon used, a metal axe, on the body parts to which blows were directed, to the neck and head - the obvious outcome is death.

Intention is clear from the manner of assault, the weapon used, and the vulnerable part of the body to which the assault was directed: see S v Zorodzai Moyo HMA16-17 and also S v Mema HB143-13.

What is apparent from the circumstances of this matter is the fact, that, the accused was angered by rejection by the deceased over a long period. She did not immediately react, but allowed the grudge to incubate in herself while awaiting for an opportune time to exert revenge.

Such actions do not fall under the defence of provocation for the obvious pre-planning and execution to exert revenge.

The murder weapon was stashed in the bedroom, well in advance, awaiting the opportune time. When the opportunity arose, the accused, who was so engrossed in scorched earth policy, and with desire to revenge, in the firm belief, if I cannot have you no one else can, fulfilled her desire to eliminate the deceased.

In the circumstances, the accused intended the consequences and thus intentionally struck the head and neck with a lethal weapon, a metal axe, viciously and severally, in circumstances where death was substantially certain.

She therefore cannot escape conviction, and is found of guilty of murder with actual intention as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

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Law Portal
Zimbabwe

Findings of Fact re: Assessment of Evidence, Inferences, the Cardinal Rule of Logic and Evidential Concessions

HMT48-19 : THE STATE vs VICTOR DINGA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT13-20 : THE STATE vs OBEY MASAMBU
Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

HMT15-20 : STATE vs REMIGIOUS SIPANDA and TAPIWA ZVOMUNO
Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

HMT17-20 : THE STATE vs EMMANUEL CHITURUMANI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

HMT20-20 : STATE vs LYDIA NEZANDONYI
Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and MUDZINGE

HMT21-20 : STATE vs RAMSEY MAKONI
Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

HMT27-20 : STATE vs LLOYD MAHOVANA
Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

HMT32-20 : THE STATE vs KUZIVA MUKUNGUMA
Ruled By: MWAYERA J and ASSESSORS: CHIPERE and MUDZINGE

HMT33-20 : STATE vs ANESU MAFOKOSHO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

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Law Portal Zimbabwe

Findings of Fact re: Assessment of Evidence, Inferences, the Cardinal Rule of Logic and Evidential Concessions

HMT48-19 : THE STATE vs VICTOR DINGA Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT13-20 : THE STATE vs OBEY MASAMBU Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

HMT15-20 : STATE vs REMIGIOUS SIPANDA and TAPIWA ZVOMUNO Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

HMT17-20 : THE STATE vs EMMANUEL CHITURUMANI Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

HMT20-20 : STATE vs LYDIA NEZANDONYI Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and MUDZINGE

HMT21-20 : STATE vs RAMSEY MAKONI Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

HMT27-20 : STATE vs LLOYD MAHOVANA Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

HMT32-20 : THE STATE vs KUZIVA MUKUNGUMA Ruled By: MWAYERA J and ASSESSORS: CHIPERE and MUDZINGE

HMT33-20 : STATE vs ANESU MAFOKOSHO Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

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Law Portal
Zimbabwe

HMT48-19 : THE STATE vs VICTOR DINGA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT13-20 : THE STATE vs OBEY MASAMBU
Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

HMT15-20 : STATE vs REMIGIOUS SIPANDA and TAPIWA ZVOMUNO
Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

HMT17-20 : THE STATE vs EMMANUEL CHITURUMANI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

HMT20-20 : STATE vs LYDIA NEZANDONYI
Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and MUDZINGE

HMT21-20 : STATE vs RAMSEY MAKONI
Ruled By: MUZENDA J and ASSESSORS: CHAGONDA and SANA

HMT27-20 : STATE vs LLOYD MAHOVANA
Ruled By: MUZENDA J and ASSESSORS: RAJA and MAGOROKOSHO

HMT32-20 : THE STATE vs KUZIVA MUKUNGUMA
Ruled By: MWAYERA J and ASSESSORS: CHIPERE and MUDZINGE

HMT33-20 : STATE vs ANESU MAFOKOSHO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA