CHEDA J: This
is a trial for murder.
Accused
was charged with murder. In response to
the charge he stated; “I understand the charge and I admit it”.
His
defence counsel Mr. Jaravaza advised
the court that in fact accused was pleading guilty to culpable homicide. As a result of this response a plea of not
guilty was entered.
The
State opened its case by calling Regis Chitambira. His evidence was that he resides in Harare but owns a plot in
Mvuma. The accused was employed by him
as a herdman while deceased was his nephew.
On the 3rd of August 2003 he left Harare for Mvuma with his friend one
Maseko. Upon arrival at the plot he
discovered that the accused had sold the meat of a beast which he had
previously reported to have died. He,
however, could not properly account for the proceeds of the sale of the meat. The witness also discovered that some maize
seed was missing, and accused could not give a satisfactory explanation for
this. At that stage accused left them on
the pretex that he was going to collect firewood and round up cattle, but, he
never came back.
The
witness made a follow–up to Chikara village where he was advised that accused
had been observed running to Sebakwe
River. He further received a report to the effect that
accused was a problem in the community.
Upon receiving these adverse reports about accused, he went on to inform
the village head, one Muromo, that he no longer wanted him in his employment. He, advised Mr. Muromo to report the accused
to the police and went back to Harare
with his friend Maseko. Upon arrival in Harare, he dispatched his
nephew, the now deceased to go and look after his cattle at the plot. That was the last time he saw the deceased
until the 31st August 2003 when he again went to the plot and was
then advised that deceased had been found buried in an anthill hole. This was the gist of his evidence.
The defence counsel found himself in
a difficult position in cross examining this witness as he was very steadfast
in his evidence. For that reason we have
no alternative, but, to conclude that he was a credible witness and as such his
evidence is accepted in its entirety.
The State sought and obtained admission
of evidence of the following witness:
1. Johnson Muromo
2. Alfred Chifofo
3. Fungayi Kanyama
4. Veronica Chikara
5. Detective Assistant Inspector Mazambani
6. Detective Sgt Muchada
7. Dr I. Jekenya
The State further produced a post
mortem report and an axe as Exhibits 4 and 5 respectively. The State then closed its case.
The defence opened its case by calling
accused. His evidence was that he was
indeed employed by Regis Chitambira as a headman. On the day in question Regis Chitambira and
Maseko arrived and he explained to them about the non-availability of the
proceeds of the sale of the meat and the disappearance of maize seed. They asked him to go and look for firewood in
order for them to cook and also to round-up cattle as they wanted to see them
before they went back to Harare. He could not locate the cattle and did not
come back as he was afraid of Maseko. He
therefore stayed away until Regis Chitambira and Maseko returned to Harare.
He only came back to sleep after
they had gone. He woke up in the morning
to continue looking for the cattle. He,
however, went for a beer drink and only came back on the 3rd
day. Upon arrival he found deceased present. He advised deceased that he wanted to take
his belongings and proceed to Harare
to see Regis Chitambira. However,
deceased denied him entrance and a struggle ensured. It was his further evidence that deceased
advised him that if he wanted his belongings he should first go to Harare. They argued and accused forced his way into
the room. He struck deceased first with
a fist. Deceased tried to pick-up an axe
but failed. Deceased's failure to get
possession of the axe gave him an opportunity to grab the axe which he used to strike
the deceased on the head resulting in him falling down. On realizing that he had killed deceased, he
wrapped his body with a carpet and placed him on a reed mat. He then pulled him and buried him in an
anthill hole. He then boarded a bus to Harare. It is his further evidence that he saw Regis
Chitambira and they discussed about his salary which he had not received for
the past two months. He then disappeared
and was only arrested in 2006 at Beitbridge.
When
asked why he did not report this incident to anyone, he stated that he could
not do so as he was afraid. We find as a
fact that Regis Chitambira and Maseko were not happy with his services and they
then proceeded to advise the village head that they no longer wanted him in
their employment. They, even went
further and advised the kraalhead to report him to the police. In view of this, there is no reason why Regis
Chitambira would have refused accused permission to take his bag as he had already
fired him because of his misdemeanors.
If he had wanted accused to come to Harare,
he would have taken accused's bag himself to Harare in order to force him to follow. Accused was therefore not telling the truth
about the events of this fateful day.
Deceased had nothing to do with accused's bag.
We therefore, find that accused
killed the deceased for no apparent reason.
He was not under attack. The only
reasonable explanation for this murder, in the court's view, is that accused was
upset by finding that his job had been taken by the deceased. What he failed to
appreciate is that deceased was just a mere employee like himself. The person who had wronged him if at all was
Regis Chitambira.
Mr.
Masuku for the State has urged the court to find accused guilty of murder
with actual intent on the basis that he used an axe on deceased's head. The fact that he had been drinking is
acknowledged, but, however, he knew what he was doing hence his clear
explanation of what happened 6 years ago.
On the other hand, Mr. Jaravaza has argued that accused's
version should be accepted as a true reflection of what took place on the day
in question. We find that the accused's
story is difficult to believe as his explanation does not make any sense at
all. Mr.
Jaravaza argued that the state is relying on circumstantial evidence as
there was no witness except the accused.
He is to a certain extent correct, that there was no witness. There is, however, clear evidence linking the
accused by his relevant confession and a detailed description of how deceased
met his death. In addition, accused's
conduct after the murder, that is wrapping the body and burying it alone adds
to accused's actual intent. As if this
was not enough, accused did not report to anyone, but, went into hiding for 3
years until he ran out of luck and was arrested in Beitbridge border town. The only reasonable inference which can be
made in order for a reasonable court to convict is that accused caused the
death of the deceased by striking him on the head in the manner he did by an
axe, by so doing he intended to kill the deceased see R v Blom 1939 AD 188.
Mr.
Jaravaza further argued that accused had been drinking. While this is true the alcohol intake does
not seem to have had any effect on his mental faculties bearing in mind his
graphic description of what happened which he vividly remembers after 6
years.
We are convinced that the state has proved
its case beyond reasonable doubt and the accused is therefore found guilty of
murder with actual intent.
Attorney General's Office, Criminal Division, applicant's legal
practitioners
Dzimba, Jaravaza and
Associates, respondent's legal practitioners
