Domestic Violence and Gender Based Violence

HH229-10 : STATE vs KUDAKWASHE NYAWERA and JOSEPH KASEKE and FRANCIS MUCHAMBA and STANLEY SHONHIWA and FARAI MAVHUNDU
Ruled By: MUTEMA J and MTSHIYA J

The accused was charged with, and pleaded guilty, to C/S4 as read with section 3(i)(a) of the Domestic Violence Act, [Chapter 5:16] in that he had assaulted his wife with a sjambok on 11 February 2009 for refusing to give him “money to pay for his child's fees” and the wife sustained “cuts and ...

HB124-14 : THE STATE vs POLITE SITHOLE
Ruled By: TAKUVA J and MOYO J

The accused was charged with two counts as follows: Count 1: Contravening section 4(1) as read with section 3(1) of the Domestic Violence Act [Chapter 5:16]. Count 2: Contravening section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The complainant and the accused were residing at 19 Donston Greenvalle, Gweru as husband and wife. The complainant was ...

HMA24-17 : THE STATE vs CHIPO MANDOMBO
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and DAURAMANZI

This matter brings to the fore the scourge of domestic violence which has afflicted our society leading to ghastly consequences, which include the loss of life. It is saddening to note that spouses are meeting their demise at the hands of those who have taken vows to love them forever. Domestic violence now transcends gender ...

HB91-16 : THE STATE vs TENDAI NKOMO
Ruled By: BERE J and ASSESSORS: DUBE and NDLOVU

Our people must be slow to resort to violence in order to resolve their matrimonial challenges.

HH45-15 : JEALOUS MAKOMBE vs THE STATE
Ruled By: BERE J and MUSAKWA J

This record has been placed before me for review. The brief facts are that the appellant was charged and convicted of having assaulted his wife by striking her on the mouth with open hands in violation of section 4(1)(a) of the Domestic Violence Act [Chapter 5:16]….,. There is no issue with the conviction.

HB115-16 : THE STATE vs ELIZABETH MBULAYI
Ruled By: TAKUVA J and ASSESSORS: DAMBA and HADEBE

Where a marriage is frequently punctuated by violence, the alternative is to divorce instead of taking the law into one's hands and bring about the demise of a spouse. What is alarming is the upsurge in murder cases arising from domestic violence over suspected infidelity. The courts have a duty to curb such criminality and uphold the ...

HB29-14 : THE STATE vs SONNY KUZOMUNHU CHASI
Ruled By: MAKONESE J

Over the past few years, cases of domestic violence and child sexual abuse have been on the increase. Our courts process such cases daily throughout the country and there does not appear to be a solution to curb or indeed reduce the frequency of such cases. This case, sadly illustrates the nature and depth of the ...

HB247-16 : THE STATE vs SITHABILE NDLOVU
Ruled By: BERE J and MATHONSI J

The accused appeared at Western Commonage Magistrates' Court and was charged and convicted of contravening section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and of contravening section 1(a) as read with section 4(1) of the Domestic Violence Act [Chapter 5:16] (physical abuse)….,. The relevant portion of the State Outline reads as follows: “5. Complainant then ...

HH166-15 : THE STATE vs FARAI TUHWE
Ruled By: MUREMBA J

The accused was charged with two counts of physical abuse as defined in section 4(1)(a) as read with section 3(1)(a) of the Domestic Violence Act [Chapter 5:16]. The accused was convicted on his own pleas...,.

HH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

The intention of the legislature, in enacting the Domestic Violence Act [Chapter 5:16] (the DVA), was not only to promote the eradication of domestic violence, but to promote harmony in families….,. The accused was charged with physical abuse, as defined in section 4(1)(a), as read with section 3(1)(9a) of the Domestic Violence Act [Chapter 5:16] (DVA), it ...

The intention of the legislature, in enacting the Domestic Violence Act [Chapter 5:16] (the DVA), was not only to promote the eradication of domestic violence, but to promote harmony in families….,.

The accused was charged with physical abuse, as defined in section 4(1)(a), as read with section 3(1)(9a) of the Domestic Violence Act [Chapter 5:16] (DVA), it being alleged that, on 15 October 2014 at Gudyanga homestead, he unlawfully slapped Delly Gororo several times on her face with open hands intending to cause bodily harm or realizing that there was a real risk or possibility that bodily harm would result.

According to the outline of the State case, the complainant is an eighteen year old female and the accused is twenty years old, male, and unemployed. They are husband and wife. It is alleged that the accused assaulted the complainant over a denial of conjugal rights. The complainant sustained a swollen mouth and did not seek medical attention….,.

In State v Muchekayawa,Criminal Review Judgment; HB42-12; 2012 ZLR 272, the reviewing judge had this to say:

“Magistrates should always request the complainants in such cases to obtain medical reports for the court to assess not only the degree of injuries suffered but the likelihood of any permanent disability. I note here that both prosecutors and magistrates pay scant regard to section 5 of the Domestic Violence Act which places duties on police officers, in relation to domestic violence, in the following terms under section 5(2):

'A police officer to whom a complaint of domestic violence is made or who investigates such complaint shall…, obtain for the complainant, or advise the complainant how to obtain, shelter or medical treatment, or assist the complainant in any other suitable way.'”…,.

The Domestic Violence Act is unique in its recognition and promotion of family values, of adhesion and cohesion of the nuclear family. In recognition of its objective to bring families together as opposed to contributing to their break-up, provision is made in the Act for the appointment of anti-domestic violence counsellors by the Minister responsible for social welfare, health, child welfare and gender or women's affairs. There is a panel of anti-domestic violence counsellors drawn from social welfare officers, members of Private Voluntary Organizations that deal with domestic violence issues, chiefs or headmen.

The functions of anti-domestic violence counsellors include advising, counselling and mediating the solution of any problems in personal relationships that are likely to lead to domestic violence, investigating the financial status of the parties at the request of the court, investigating and making immediate accommodation arrangements for complainants prior to the issue of protection orders, arranging medical treatment and examination of any minors who are complainants. In carrying out these duties, the anti domestic violence counsellors may call upon the police for assistance. Judicial officers are reminded of the need to send families for counseling where the domestic violence complained of continues despite initial conviction or sentencing.

HB42-12 : THE STATE vs JOHN MUCHEKAYAWA
Ruled By: MAKONESE J

This matter was placed before me for review and a perusal of the record revealed that nothing turned on the conviction…,. The accused is a male adult aged 29 years old...., He appeared before a magistrate at Zvishavane on the 8th of December 2011 facing a charge of contravening section 4(1) as read with section 3 of ...

This matter was placed before me for review and a perusal of the record revealed that nothing turned on the conviction…,.

The accused is a male adult aged 29 years old...., He appeared before a magistrate at Zvishavane on the 8^th of December 2011 facing a charge of contravening section 4(1) as read with section 3 of the Domestic Violence Act [Chapter 5:16]. He pleaded guilty...,.

The brief facts of the matter are that on the 2^ndofDecember 2011, the complainant, the complainant's sister, one Loreen, and the accused went for a beer drink in downtown Zvishavane at around 2100 hours. The accused and the complainant are husband and wife. At around 0200 hours the accused ordered the complainant and her young sister to board a taxi to go home. It would appear that the complainant refused to get into the taxi chosen by the accused but eventually the trio boarded a taxi picked by the complainant. This angered the accused. As soon as they got home the accused quizzed the complainant as to why she had declined to board the taxi he had called. The accused started assaulting the complainant with a log several times all over the body until she fell to the ground. Whilst on the ground the accused picked up a stone and struck the complainant above the right eye resulting in her sustaining a deep cut.

The complainant did not seek medical attention so there is no medical report in the record….,.

Magistrates should always request the complainants in such cases to obtain medical reports for the court to assess not only the degree of injuries suffered but the likelihood of any permanent disability.

I note here that both prosecutors and magistrates pay little regard to the provisions of section 5 of the Domestic Violence Act [Chapter 5:16] which places duties on police officers, in relation to domestic violence, in the following terms under section 5(2);

“A police officer to whom a complaint of domestic violence is made or who investigates any such complaint shall obtain for the complainant, or advise the complainant how to obtain shelter or medical treatment, or assist the complainant in any other suitable way;”…,.

The importance of medical reports in such cases cannot be over emphasized. See the case of S v Anock 1973 (3) SA 128 (RA).

HMA14-18 : GILBERT BALOYI vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

Count Two was physical abuse, in contravention of section (3)(1)(1)](a), as read with section 4 of the Domestic Violence Act [Chapter 5:16]. The appellant was alleged to have assaulted his first wife, Susan Sibanda [“Susan”] so severely that she fell unconscious. She was pregnant at the time. He beat her all over the body with clenched ...

HMA51-17 : STATE vs HARDLIFE GADZAI
Ruled By: MAFUSIRE J and MAWADZE J

In the two domestic violence Counts, the accused's then wife was the victim. In Count 1, he picked a quarrel with her over her twelve-year old daughter who had just arrived from the wife's rural home. Most probably, the daughter was not the accused's child. The wife took the daughter to her sister's place in another part ...

HB162-15 : THE STATE vs NQOBILE NCUBE
Ruled By: MAKONESE J

The accused was charged with the crime of murder; it being alleged that on 19 December 2014, at Mabutho Ncube's homestead, Nyambane Village, Gulathi area, Matobo, the accused did wrongfully and unlawfully kill and murder Mabutho Ncube, a male adult who was aged 35 years, by striking him with a log on the head.

The accused pleaded not guilty to the charge and tendered a limited plea of guilty with respect to the lessor charge of culpable homicide.

The State accepted the limited plea and tendered a Statement of Agreed facts (exhibit 1).

The brief facts are that on 18 December 2014, the accused and the deceased, who were husband and wife, had a misunderstanding over the accused's disappearance from their matrimonial home without the deceased's knowledge. The deceased did not accept the accused's explanation. On the following day, on 19 December 2014, around 20:00 hours the accused and the deceased had a physical confrontation. Harsh words were exchanged between the parties. The accused alleges that the deceased threatened to stab her with a knife. In anger, the accused picked up a log and struck the deceased twice on the head. The accused disappeared from the scene.

On 20 December 2014, the accused phoned the deceased's brother and informed him that she had fought with the deceased and struck him with a log. On 21 December, the deceased's brother proceeded to the deceased's homestead where he found the deceased naked and lying in a pool of blood – dead.

The deceased had succumbed to the injuries sustained in the assault.

The postmortem report (exhibit 2) reveals that the cause of death was:

(a) Subarchnoid haemorrhage.

(b) Depressed skull fracture.

(c) Blunt force trauma head.

(d) Homicide.

The pathologist concluded, from the examination, that the cause of death was consistent with a blunt force trauma with a heavy and blunt object.

On external examination, the following marks of violence were observed:

(i) Abrasion on left hand (2cm x 2cm);

(ii) Swelling on hand;

(iii) Blood on the face, neck, shoulders and forearm;

(iv) Lacerations below right eye (2cm);

(v) Laceration on left frontal (4cm) and left parietal (6cm).

The court is satisfied that the accused acted negligently in causing the death of the deceased. Accordingly, the accused is acquitted on the charge of murder and found guilty in respect to culpable homicide....,.

The courts have always stated, and restated, that domestic disputes must be resolved amicably and that parties must not resort to violence. The court is urged to uphold and preserve the sanctity of human life....,.

The courts are dealing with cases of domestic violence at an alarming rate. Hardly a day passes without an incident being reported of a couple being involved in a case of fatal domestic violence leading to loss of life. The message from the courts should, and must, be that violence is not tolerated as a means of resolving disputes. Violence has no place in a modern society and the courts must uphold the sanctity of human life.

I do concur with both defence and State counsel that a custodial sentence is the only appropriate sentence.

In the circumstances, the accused is sentenced as follows:

“4 years imprisonment of which one is suspended for 5 years on condition accused does not within that period commit an offence of which violence is an element and for which she is sentenced to a term of imprisonment without the option of a fine.

Effective sentence (three) 3 years imprisonment.”

HMT04-18 : THE STATE vs TALENT CHAKABVA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

The accused is…, found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code)….,. In reaching at an appropriate sentence we have considered all mitigatory and aggravatory factors submitted by the defence counsel and State counsel. We must commend both counsels for the help in referring us to case law, which ...

The accused is…, found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code)….,.

In reaching at an appropriate sentence we have considered all mitigatory and aggravatory factors submitted by the defence counsel and State counsel. We must commend both counsels for the help in referring us to case law, which are, of course, guidelines. We are also indebted for being reminded of the circumstances of the matter.

The accused is a first offender, who, despite not pleading guilty showed remorse by assisting in the due administration of justice as evidenced by the common cause aspects. During trial, the accused showed he regretted his actions and was in pain in coming to terms with having caused his own brother's death.

We did not read his sobbing in court to be fake, but that which was coming from inside at the pain of the death of a beloved blood brother due to the accused's own violent conduct. The accused is given as a family man with fairly heavy responsibility. His children and wife will endure hardship during the period of incarceration. We have also taken note of the fact that the accused has been in custody for 10 months awaiting the finalisation of the matter. The trauma that goes with the suspense when one has such a serious allegation hanging on them cannot be understated.

We are indebted to the State counsel for reminding us of the circumstances of the commission of the offence and the testimony of the accused and the deceased's mother. She surely did not seek to trivialise the offence but sought to request the court to temper justice with mercy as she clearly was at pains to accept that the accused and the deceased had ended this way given the close relationship. Also, the burden of taking care of two (2) sons' families would be excessive on her.

In passing sentence, as correctly observed by both counsel, the courts seek to match the crime to the offender while at the same time being fair to society.

However, in aggravation is that fact that precious human life was unnecessarily lost. The accused could have proceeded to his home as opposed to wait as if to waylay and seek revenge for being remonstrated with on his wayward behaviour. The deceased's family, wife, and children, in particular, will never have a father figure in the form of the deceased.

This matter can also be classified as domestic violence, where a brother fatally attacked the other. Such lack of respect of relationship and the social fabric aggravates the offence.

The court has to add its voice in disapproving the social evil of domestic violence. It should be clear to the accused, and society at large, that misunderstanding and disputes are not solved by resorting to violence.

The accused stands convicted of a serious offence which calls for severe punishment as evidenced by the penalty provisions.

No one has a right to take away another's life as provided for in the Zimbabwean Constitution.

In passing sentence, it is imperative for the court to have due regard to the crime and the offender and be fair to society while at the same time considering the circumstances of such case.

In cases of a serious nature, like murder, the courts have to pass deterrent sentences not only to deter the accused but to deter the community at large and also give society confidence in the justice delivery system. The court should thus act firmly, humanly, compassionately and bear in mind the realistic human weaknesses and pressures of society which lead people to commit crime. The offender should therefore be adequately punished and not be broken by the punishment.

In this case, the fact that the accused is a blood brother to the deceased cannot be ignored given the accused's clear show of remorse and regret when he testified. The parents and his siblings are at pains to come to terms with the death of one of their sons at the hands of their other son. The whole family will suffer the pain that goes with a brother killing another brother and the stigma that attaches.

Upon considering all mitigatory and aggravatory factors, and circumstances of this case, we feel a short imprisonment term will meet the justice of the case. The accused is sentenced as follows:

10 years imprisonment.

HH516-17 : STATE vs ARNOLD JERI
Ruled By: TSANGA J and ASSESSORS: MTAMBIRA and MHANDU

The accused was charged with murder in that on the 8th day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died. The summary of the State's case ...

The accused was charged with murder in that on the 8^th day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died.

The summary of the State's case was that on the day in question, the accused, Arnold Jeri, who had been drinking beer at Umsweswe Bottle Store when the deceased, Linda Mushangi, visited her friend, Tatenda Gwata, had tried to endear himself to the deceased but had been spurned. This had apparently irked the accused who had slapped the deceased on the face with an open hand and had intensified his assaults with booted feet. The deceased had picked up an empty beer bottle and had hit him with it.

Attempts had been made to stop the accused from assaulting the deceased. She had used this window of opportunity to run away from the accused by seeking refuge from some patrons. The accused had followed her with a knife and had tried to stab her from both left and right sides before he succeeded in stabbing her in the stomach from the left. She had screamed and had run out of the room and had collapsed at the foot of the veranda. The accused was said to have run way from the scene. He had eventually surrendered himself at ZRP Nyamapanda on 14 November 2016.

The accused's defence was that the deceased had shouted at him using obscene language and that she had caught him unaware and struck him twice with a beer bottle on the head. He had used his knife in self-defence as he wanted to disarm the deceased whom he said was holding a broken beer bottle. It was during this time that he had accidentally stabbed the deceased's stomach....,.

The post-mortem report done by Dr Gonzalez, a duly attested medical practitioner and forensic pathologist. His report concluded that the deceased died as a result of hypovolemic shock, abdominal aortic artery damage, and the stab wound....,.

It was therefore not in dispute that the accused had stabbed the deceased in the stomach.

The main issue for resolution were the circumstances surrounding the stabbing; in other words, the reasons for the misunderstanding....,.

The State's evidence

Tatenda Gwata: She worked as bar lady for the owner who had several bars and bottle stores. The deceased was her friend who would come to the bar to assist her with relief duties and preparing food. She knew her as a relative of one of the women who also worked at the bar. She also knew the accused as a patron at the bar. He was called Pipiro by his friends. She had been working at that particular bar for a week as the owner had several bars.

Her collection of the events of that day was that Kabanga Muyambo had been the first to arrive at the bar and she had sold him beer. The accused had then arrived later. The deceased had arrived between 16:30 and 17:00 hours. They had discussed what they would eat and had decided on buying plain sadza to consume with milk. It was when the deceased was coming from buying the sadza that the accused had thrown an empty bottle of water at her and the deceased had protested and indicated that she did not like that behaviour. The accused had not responded, but, when they started eating he had returned again and wanted to know why he had been excluded from joining them in their meal. He had not been answered.

It was at around 20:00 hours that the accused had again approached the deceased saying she should come to him as he had summoned her on several occasions. The deceased had responded that she had already told him that she was not interested in his advances. She had asked the deceased if she had any relationship with the accused to which she had said no. The accused had, at that point, slapped the deceased on the face and had kicked her resulting in her hitting the refrigerator. He had also gotten hold of the deceased and had head butted her several times. At that point this witness had screamed and had thrown a bottle top at Kabanga Muyambo, the accused's friend, who had been asleep. So vicious was the attack against the deceased that she had had to close her eyes and hold her face in her hands as she let out that the accused would injure the deceased from the way he was head-butting her. It was also at this point in the assault that the deceased had taken an empty beer bottle and had hit the accused with it.

Kabanga Muyambo had woken up and had tried to pull the accused away but he had been beaten and pushed against some empty crates stacked against the wall. The accused had pushed Kabanga Muyambo outside the bottle store and had himself come back to continue his pursuit of the deceased who had now taken refuge behind one of the three patrons who were in the bar. He had continued his assault even as one of the men stood between the accused and the deceased as a human shield.

It was also her evidence that two of the men had managed to subdue the accused and had taken him out of the bar but he had come right back in. It was when he returned again that he had drawn a knife from his satchel which he had been carrying on his back. He had, once again, gone to the deceased who was behind a patron and had tried to stab her several times until he had been successful in doing so on the left side. The deceased had screamed that she was dying and had run outside at that point before collapsing to the ground.

The accused had put back the knife in his satchel and had walked out of the bar.

Whilst at the height of the assault on the deceased, she had hidden behind a door; she had, nonetheless, been able to continue observing from a vantage point provided by wide gap between the hinges.

The police had been called and had attended the scene. She had only left the following morning when her statement and photographs from the scene had been taken.

Asked to comment on the accused's sobriety at the time of the assault she stated, in her examination in chief, that on that day she herself had not observed him drinking but had noticed that he was carrying a bottle of water which looked like it had water inside although she did not verify its actual contents. She however did not think he was drunk.

As to whether the deceased had provoked the accused in any manner she had not heard anything and certainly at no time had she heard the deceased hurl any insults at the accused.

In cross examination, she confirmed when asked that she had heard that the deceased was a sex worker but that she had not seen her solicit at the bar in question.

Counsel for the accused had also put it to her that she herself was a sex worker like her friend before the court objected to this line of questioning of the witness's moral turpitude as irrelevant to the case at hand.

She conceded that hitting someone with a bottle was dangerous.

She was asked why the other three men who were drinking in the bar had not intervened at the time of the slap on the basis that if she had done nothing to the accused they would not have left him to assault the deceased. She did not know their reasons for not intervening then.

She had also stood steadfast that the deceased was no longer armed with a bottle and was merely hiding behind the man in question for protection when she was stabbed by the accused.

As regards the accused's sobriety, it was put at her that the bottle of water that the accused was carrying may in fact have contained alcohol and that she could therefore not dispute that he was drunk.

From her evidence, therefore, what we deduced materially were the following crucial points:

(a) It was the accused who had assaulted the deceased first and had engaged in a vicious assault including pushing and head-butting the deceased.

(b) It was during this assault by the accused on the deceased that the latter had retaliated by hitting him with a bottle.

(d) At the time of the stabbing, the deceased had been standing behind a patron who had stood as a buffer between the accused and the deceased.

Kabanga Muyambo: His evidence was that he had arrived at the bar at 11am in the morning whilst the deceased had arrived at around 15:00 hours. He said he had bought the accused three opaque beers and that when the accused had finished these he had consumed a drink called double punch mixed with water. He himself had fallen asleep at around 18:00 hours whilst the accused whilst still drinking his double punch.

However, he had still been awake when the deceased and Tatenda Gwata, the first witness, had eaten their meal. He had observed the accused talking to the deceased but said he had not heard what the conversation had been about but the tone had been cordial. He said he had been awoken suddenly by glass shards falling on him when a bottle hit the accused. He had seen the accused head butting the deceased and had grabbed the accused who shook himself free and jumped over the counter and continued beating the deceased. He had followed him and dragged him from there and the accused had started beating him until he fell against some crates alongside the wall. He said he had managed to pull the accused outside but the latter had rushed back in again.

This corroborated Tatenda Gwata's evidence that there had been efforts to restrain the accused from assaulting the deceased save to say that she had said it was the accused who managed to push this witness outside whilst the witness said it was him who pushed the accused outside. This was not material since no two persons experiencing the same event have identical experiences particularly because they cannot be precisely at the same place at precisely the same time;BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

The crucial point on which there was consensus was the clear effort to restrain the accused.

Further corroborated was Tatenda Gwata's evidence that the deceased had sought shelter behind one of the patrons and that the deceased had not been holding any beer bottle fragment at that time.

As this witness was about to return inside he had observed the accused putting something in his bag and walking away.

His view was that the deceased was not a violent person and that if any provocation had taken place it was likely to have been the accused who had provoked the deceased as he had witnessed the two talking nicely before.

He further corroborated the first witness's evidence that on that day the deceased was definitely not drinking at the very least up to the point he fell asleep. He told the court that he had known the accused for over a year and that he had at least three girlfriends at the same time....,.

The Accused's evidence

The accused then gave his evidence.

He could not remember what time he had arrived at the bottle store as he had no watch. He surmised it was in the afternoon around 14:00. He confirmed that he was drinking beer bought by Kabanga Muyambo and not by himself. He could also not recall what time the deceased had entered the bottle store save that she had arrived when he was already there. His evidence was that the deceased had come to the counter where he was and they had started talking and drinking together. It was whilst they were talking that the deceased had stated that she wanted to sleep with him for a small fee. He had told her he had no money but she had been persistent.

According to him, the deceased had then hurled insults at him calling him useless and a pauper and had then poked him on his forehead with her finger. She had used profanities and had even slapped the accused after uttering the profanities. He had become angry at the insults and had slapped her and grabbed her head and butted her. That is also when she had hit him with a bottle.

He said she had continued uttering profanities and had come after him with a broken bottle. That was when Kabanga Muyambo got hold of him but he had shaken him loose. The deceased was by now behind one of the patrons but was still trying to advance to him with a broken bottle. He had taken out the knife to scare her from using the bottle and had intended to strike her on the arm. He had stabbed her in the stomach instead when he thought he had stabbed her in the arm. He had the knife on him because he had intended to go hunting....,.

Analysis of the factual evidence

The evidence at every turn pointed to the accused having been the aggressor. When the bottle was thrown at him by the deceased it was in her self-defence as she was being head butted by the accused.

There was no evidence that the deceased was provoked. Instead, he was the one who provoked the deceased when he assaulted her for ignoring his advances. There was also no credible challenge to Tatenda Gwata's evidence regarding the accused's harassment of the deceased in the initial instance as being what led to the unfortunate events.

Indeed, the court observed that the accused was most at pains in crafting his version of events when it came to relating the cause of the violent rupture. What was particularly observable from the accused's narration of his version of events was that he clearly struggled to tell his story. His own counsel had to prod him several times to give the fuller accounts of what happened. This, to the court, was indicative of a person who was having to make up his story as he went along since deceivers tend to use fewer words in communication and make fewer factual statements for fear of being caught in the lie; see BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

His narrative was no more than pejorative utterances about the deceased as a 'prostitute.”

The story that the deceased had harassed him for sex and had become annoyed at his lack of co-operation and uttered profanities at him was clearly made up. There was no evidence from any of the two witnesses that they had heard the deceased utter any obscenities against the accused as he claimed that could have led to his being provoked as he was the first to assault the deceased before she threw the beer bottle at him when he was head-butting her.

She had been assaulted for showing no interest in him and rejecting his advances. In such a situation where there is a contest of credibility between an alleged male assailant and an alleged female assailant the court is indeed entitled to take cognisance of the fact the vast majority of crimes of violence are committed by men.

The self defence argument equally fails to hold.

We found the evidence by Tatenda Gwata and Kabanga Muyambo that there had been efforts to get the accused to stop his assault on the deceased by taking him outside to be credible. At the time that he stabbed the deceased, there was no unlawful attack upon the accused that was imminent and from which he needed to protect himself.

We also found their evidence credible that the deceased was, at that time, no longer armed with a bottle.

We also found Kabanga Muyambo's evidence credible that when he woke up to the bottle shards, and observed the deceased fighting the accused behind the counter, she was now at that time merely using her hands, defending herself and simply trying to shake off the accused. In other words, the bottle incident had passed which, in any event, the evidence showed, had been instigated by the accused head butting of the deceased. Indeed, if she had still been holding a broken bottle piece at the time of the stabbing, then the reasonable reaction of the man she stood behind would have been to face her in an effort to get her to drop the bottle.

The deceased's position behind this man suggests, in every sense, that she was in a protective as opposed to a combative position. The accused was therefore clearly not in any immediate danger at the time that he stabbed the deceased.

He was on a mission to inflict harm which he had started. He had already decided very earlier on before his fatal stab to avenge what he perceived as a rejection by the deceased of his advances by assaulting her. The deceased had sought the protection of patrons but he had doggedly persisted with his assault until the fatal stab. She was killed as a result of a stab wound to the stomach. He had clearly aimed at a fragile part of the body to inflict maximum harm. So vicious had been the stabbing with the knife that it had exposed her intestines.

Ultimately, this is a criminal case of murder in which a woman said no to a man's advances and was killed for doing so.

The accused's assault of the deceased in the initial instance when he slapped her for ignoring him, was his exercise of power over her and has to be understood for what it was – an ultimate display of power over her rejection. The deceased was attacked because she failed to respond to his whims and fancies. He had slapped her, pushed her against the fridge head butted her, and, when she had thrown a bottle at him to release his grip, he had gone into a frenzied rage even when he was clearly no longer in danger just to show her who was the master. His conduct in this regard went against the very tenets of our Constitution,Constitution of Zimbabwe Amendment (No.20) 2013,which, in section 51, accords every person the inherent right to dignity and to have that dignity respected and protected. Harassment violates that dignity. It also violates the right to freedom from all forms of violence from both public and private sources as articulated in section 52(b) of the Constitution.

The genderness of violence arises from the fact that women, unlike men, are the ones most likely to encounter forms of violence in the private sphere at the hands of private actors. Dignity and freedom from violence are integral to the rights of women in all spheres of their lives. The accused's conduct was clearly an affront to these rights. Women are clearly not objects without rights. It is therefore vital that the killing not be legitimised or trivialised in any way by ignoring the Constitutional imperatives. This is therefore not a case of murder in a gender-neutral context.

The genesis of the attack that led to the killing of the deceased must be understood for what it was – a form of gender-based violence. It would be truly amiss for this court to fail to make this connection to gender based violence from the onset because that is ultimately what the killing was about in this case. The facts speak to the dangerous perception that a woman's “no” does not mean “no”; and, more significantly, that a woman does not have the right to make independent decisions about what/whom she likes or does not like and whom she wishes to associate with or not to associate with.

Insights from Kabanga Muyambo that the accused had at least three girlfriends at the same time, lead to the conclusion that the accused was clearly a man not accustomed to women saying no to him. He obviously perceived his manhood to have been challenged due to his own dangerous sense of entitlement in his dealings with and perceptions of women. This motive of rejection that started the attack should not be trivialized as it clearly unmasks the root of gender-based violence. The killing in this instance was unfortunately trivialised by the accused and his defence which sought to depict the deceased and her friend, Tatenda Gwata, as no more than prostitutes and drunkards.

Even if the deceased was a sex worker, she was certainly not without rights to dignity and freedom from violence.

She was furthermore not engaged in any sex work that evening. It was the accused who formulated his opinion that she had no right to say no to his advances because she was a sex worker. It was equally preposterous and certainly unlikely to be so to suggest that Tatenda Gwata, entrusted with money as the cashier at the bar, would have been drunk beyond herself whilst on duty on that day. The suggestion appeared to be that any woman who sets foot in a bar or works in bar must be perceived to be a prostitute and a drunkard. This demonising of women who do not fit society's framework of the moral woman in society in fact shows the depth of patriarchal perceptions of women to which even counsel are often not immune.

As courts, it is our duty to be alive to the Constitutional imperatives and to make the gender connections from the everyday cases that we deal with.

The motivations for the assault were clearly gendered and to fail to speak to the gender dimensions of this case would be to legitimize gender based violence within the criminal justice system. Our efficacy as courts in addressing gender-based violence rests in ensuring that the criminal justice system speaks to the lived realities and experiences of all its victims. Equally important is showing our appreciation and understanding of the manifestations of gender violence in the cases that we are confronted with. This trajectory is apparent in a number of court decisions that have addressed gender violence. See for example cases such as S v Muchekayawa 2012 (1) ZLR 272 (H); S v Gudyanga 2015 (1) ZLR 238 (H); S v Sibanda 2015 (1) 681 (H).

Such open recognition in the cases that we deal with helps to put gender violence into the consciousness of the law and society in general from the perspective of the courts thereby aiding the process of change....,.

The verdict is that the accused is found guilty of murder in terms of section 47(1)(b) of the Criminal Code....,.

The accused was aged 21 at the time of the offence....,.

The sentence, in my view, ought to be one that gives the convicted a real chance at changing his views about women. It cannot, and should not be curtailed to unreasonable levels simply on account of his age. As an abusive youth he risks the real possibility of morphing into an abusive adult if his sentence is taken lightly. In fostering respect for women, much will depend on whether there are any conscious efforts directed at rehabilitating him in this regard whilst he is in prison.

Balancing all factors placed before this court, the accused is sentenced to 15 years imprisonment.

HB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

This is an appeal against a sentence of 24 months imprisonment of which 8 months imprisonment were suspended for 5 years on the usual conditions of future good conduct.

The appellant, who then was aged 32 years, was arraigned before a senior magistrate sitting at Kezi on 24 November 2009 facing a charge of contravening section 4(1) as read with section 3(1)(a) of the Domestic Violence Act [Chapter 5:16].

The allegations were that on 1st of November 2009, at her homestead in Natisa area of Matobo, the appellant, by means of an unlawful act which resulted in direct infliction of physical injury, severely and intentionally burnt Prince Nkosi, her son aged ten years, on both palms with hot charcoal and on the mouth with hot ashes.

The agreed facts are that the complainant was doing Grade 4 at Whitewater Primary School. On the day, at around 0800 hours, the appellant went to church leaving the complainant and his sister, Adelite Nkosi, at home. Around 1300 hours the complainant became hungry and took the appellant's jollie juice/sweet aid valued at R1 which he diluted with water and drank. On returning from church, and discovering the consumption of the sweet aid, the appellant accused the complainant of being a thief who should be taught a lesson. She took the complainant into the kitchen hut where she took two pieces of hot charcoal and put each in the complainant's palm. She proceeded to fill a tablespoon with hot ashes and put it on the complainant's lips. Due to the pain he felt the complainant started screaming but the appellant ordered him to keep quiet. As a result, the complainant suffered severe burns on the palms and lips.

The appellant took the complainant to Natisa Clinic where she lied to the clinic staff that the complainant fell into the fire on his own.

It was only after teachers at his school had observed the burns and interviewed him that the complainant disclosed the offence leading to the school head reporting the matter to the police. The complainant was medically examined on 5 November 2009 and a medical report was then compiled. The doctor observed burns on both palms and on the lips and opined that although there was no potential danger to life or permanent disability likely to occur to the complainant, the degree of force used to inflict those injuries was very serious.

The appellant pleaded guilty to the charge.

She is a first offender who is married with four children. She vends vegetables realizing around R150 per month. She went to school up to Form 4. She had US$150 and P360 in savings and three goats and a donkey as assets. She said she was very angry at what the complainant had done, hence the punishment.

Following the imposition of the sentence alluded to above, on 24 November 2009, the appellant's current legal practitioner noted the appeal against the sentence on 4 December 2009. The gravamen of the appeal is simply that the appellant should not have been visited with an effective custodial sentence; instead, the trial court should have imposed a non-custodial sentence such as community service....,.

Regarding the merits or otherwise of the appeal it is trite that sentencing is the prerogative of the sentencing court and the Appellate Court is generally loathe to interfere unless there exists a clear injustice or misdirection.

In the instant case, while counsel for the appellant conceded in his oral submissions that the appellant's conduct was abhorrent, for a mother cannot abuse her child in that manner, he still contended that the sentence was harsh. The pith of his argument was that the appellant pleaded guilty, is a first offender, and if incarcerated no one will remain taking care of the children. He suggested that a sentence of 12 months imprisonment with half suspended on condition of good behaviour and the balance on condition of performance of community service will meet the justice of the case.

Counsel for the respondent maintained that the appeal be dismissed for lack of merit.

Section 4(1) of Domestic Violence Act [Chapter 5:16] provides:

“…, any person who commits an act of domestic violence…, shall be guilty of an offence and liable to a fine not exceeding level fourteen or imprisonment for a period not exceeding 10 years or both such fine and such imprisonment.”

In his reasons for sentence, the learned trial magistrate said:

“The accused, although a first offender, perpetrated a gothic and barbaric crime that is viewed with indignation, contempt and abhorrence by the public. As a mother, she severely and undeservingly punished a 10 year old son by burning him on the palms and mouth for drinking a R1 worth sweet aid. Mothers are synonymous with love and care. Although a first offender, her behaviour is distinguishable. A fine will trivialize the offence. An option of community service, too, will be inadequate. A prison sentence, appropriately suspended on condition of good behaviour will meet the justice of this case. This is a serious offence…,. The fact that she is a mother to the victim aggravates this offence. A gaol sentence will be appropriate.”

It is pertinent to point out that the appellant was in fact taken through the community service enquiry. The learned trial magistrate cannot be faulted in his reasoning supra; that a fine or community service will trivialize the offence.

There is no jot of misdirection on his part.

Those of a rustic background would remember, with shivers, how rural women used to punish hens that would have “eaten their own eggs.” The women would take a piece of burning wood and burn the hen's beak until only a stump remained so that thereafter the hen's beak would not be able to peck and break the egg shell in order to drink the contents again.

The above scenario can be equated to the appellant's conduct in casu.

Her conduct was devoid of any maternal instinct in spite of the fact that she was the one to blame by leaving the complainant with no food for the day. Hunger being not a good teacher of morals got the better of the complainant and understandably so. How could a mother worth her motherhood cast away the cloak of maternity and brutally punish her own ten year old son in such a primitive fashion for such a miniscule infraction worth not even a teaspoon? As if that was not enough, the appellant felt no remorse and had to effrontery to tell fibs to clinic staff in an endeavour to sweep her dastardly act under the carpet.

What the appellant did contravenes section 53 of the Constitution. She subjected the son to torture, cruel, inhuman and degrading treatment or punishment. This case is not one of sparing the rod and spoiling the child. Section 81 of the Constitution confers on every child the right to parental care, protection from maltreatment, neglect or any form of abuse and the right to nutrition. By her conduct, the appellant sorely breached the complainant's Constitutional rights enshrined in the Bill of Rights....,.

Also, it matters not that if incarcerated the appellant's children will remain with no mother. They will remain with their father. After all, the complainant himself is now 16 years old. He is now a teenager and not a child. If it were in other societies the appellant, for this domestic child abuse, would surely have been stripped of custody of her children for she certainly does not deserve custody after exhibiting such cruelty to the complainant.

There was no misdirection by the learned trial magistrate in the manner in which he assessed the sentence that he imposed upon the appellant. The sentence is properly deserved.

In the result, the appeal against sentence is without merit and is accordingly dismissed in its entirety.

HMT05-18 : THE STATE vs JAMES SIKILA
Ruled By: MWAYERA J and ASSESSORS: CHIPERE and MAGOROKOSHO

The matter came up for trial with the accused being charged for murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

When the charge was put to the accused he proffered a limited plea of guilty to culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). The State accepted the limited plea of culpable homicide. This occasioned the matter to be stood down for the State and defence counsels to come up with the Statement of Agreed Facts.

The Statement of Agreed Facts, for completeness sake, reflected the following common cause aspects:

“STATEMENT OF AGREED FACTS

1. The accused is a male adult, aged 33, and a part time farm labourer. He resides in Muradzi Village, Chief Tandi, Rusape.

2. The deceased was a 49 years old woman who was customarily married to the accused. They stayed together as husband and wife in Muradzi Village, Chief Tandi, Rusape.

3. The accused and the deceased had an uneasy marriage burdened with unresolved matrimonial disputes.

4. On the 14th of April 2017, accused received word of illness from the deceased. The accused returned home from his workplace. He discovered that the deceased had induced an abortion. A misunderstanding arose and the deceased became violent. The accused sought refuge from a neighbour who intervened and calmed the situation.

5. Later that night the accused confronted about the pregnancy and abortion and the misunderstanding deteriorated into a fight.

6. The deceased used a button stick and clenched fists to assault the accused. The accused responded by using clenched fists to assault the deceased. The accused then bolted out of their bedroom and fled from the homestead.

7. The deceased pursued and caught up with the accused and their fight resumed. The deceased was armed with an iron bar which they ordinarily used to secure their bedroom door with.

8. The accused wrestled the iron bar from the deceased and struck the deceased once on the head and she fell down. The accused left the scene without checking on the condition of the deceased.

9. As a result, the deceased sustained injuries and later passed on.

10. On the 26th April 2017 the severely decomposed remains of the deceased were found and Doctor Roberto Trecu conducted a post mortem examination of the deceased remains and his findings on the cause of death were inconclusive. The post-mortem report shall be produced as an exhibit.

11. The accused negligently caused the death of the deceased in that:-

(a) He struck the deceased once on the head with an iron bar.

(b) He ought to have foreseen that serious injury or death could occur.

(c) He failed to act reasonably and ought to have exercised restraint.

(d) He ought to have sought medical assistance for the deceased.

12. In the circumstances, the accused may be properly found guilty of culpable homicide.”

The postmortem report reflecting examination of human remains in advanced stage of decomposition was also tendered in evidence as exhibit 1.

There being no contentious aspects, and having been satisfied that the accused was genuinely pleading guilty to the essential elements and/or components of the offence of culpable homicide, we returned a verdict of guilty of culpable homicide as prayed for by both counsels....,.

In this case, the accused pleaded guilty to culpable homicide as defined in terms of section 49 of the Criminal Law (Codification and Reform) Act. The accused, as correctly pointed out by the State counsel…, stands convicted of a serious offence where precious human life was lost in domestic violence. The accused unlawfully caused the death of his wife in circumstances where this human life loss could have been avoided. Paragraph 8 of the Statement of Agreed Facts sates:

“The accused wrestled the iron bar from the deceased and struck the deceased once on the head and she fell down. The accused left the scene without checking on the condition of the deceased.”

Given this was in open space, the accused could have, after disarming the deceased, made good his escape.

The accused's degree of negligence, in the circumstances, is high given he struck his wife with an iron bar on the head, a vulnerable part of the body, and the body was only discovered later in an advanced state of decomposition as evidenced by the post mortem report by Dr Roberto, exhibit 1....,.

The moral blameworthiness of the accused in this case cannot be minimised by the fact that the Statement of Agreed Facts reveals that the couple lived a marital relationship characterised by matrimonial disputes and domestic violence. The society condemns violence of all forms given the social ills that go with domestic violence. It is not in dispute that in most cases where there is a cycle of domestic violence, the situation rarely gets better but gets worse. The accused and the deceased took as normal living in a domestic violence infested matrimony, and, the end result was the loss of precious human life. Such conduct should be frowned at.

The sanctity of human life cannot be whisked away by alleged acceptance of an abnormal family set up by the accused whose counsel…, properly advanced, in mitigation, that the accused had always been the victim and suffered the battered man syndrome. However, nothing was however placed before the court to substantiate this alleged condition.

However, from the Statement of Agreed Facts, it is clear the accused came back home, and, at night, confronted the deceased about some pregnancy and abortion after the accused had received word of illness of the deceased. A misunderstanding then arose leading to the fight and eventually the fatal blow; paragraphs 4 to 8 of the Statement of Agreed Facts. The accused was not portrayed as strictly a victim....,.

Section 48 of the Constitution protects the right to life, and, clearly, no one has the right to take away another's life....,.

7 years imprisonment of which 2 years is suspended for 5 years…,.

HH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

The accused was arraigned before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], it being alleged against her that on 26 February 2015, at House Number 18844 Unit L Seke, Chitungwiza, she, the accused, acting with an intention to kill, unlawfully caused the death of one Petros Mutasa, her husband thereat, by stabbing the said Petros Mutasa with knives thereby inflicting certain injuries from which he died on the same date.

When the matter was called on 22 February 2016, the State counsel applied to have the matter stood down to 23 February 2016....,.

Upon the resumption of proceedings, on 23 February 2016, the accused, upon the charge being put to her, indicated that she admitted to the charge.

Counsel for the accused did not confirm the accused's admission to the charge as being in accordance with his instructions. He submitted that his instructions were that the accused admitted to causing the death of the deceased but without having the intention to bring about the deceased's death. He submitted that his instruction was to tender a plea of guilty to the crime of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the light of the uncertainty surrounding the recording of the plea, the court directed that the two offences of murder as charged against the accused and put to her, to which she had admitted to, and that of culpable homicide, be explained and contrasted for the benefit of the accused to understand the distinction.

After the accused had confirmed that she understood the elements of the two offences and how they are distinguished, she then clarified that her plea of guilty was to the offence of culpable homicide and not murder. Counsel for the accused then confirmed the guilty plea as according with his brief or instructions by the accused.

A plea of not guilty to the charge of murder was then recorded.

Counsel for the State was asked whether the State was agreeing to the guilty plea to the offence of culpable homicide as tendered by the accused and he accepted the plea.

In consequence of the State's acceptance to the tendered plea of guilty to culpable homicide (a competent verdict on a charge of murder), the court entered a guilty plea to culpable homicide.

Consequent upon the acceptance of the guilty plea, counsel for the State moved the court to disregard the summary of the State case and to substitute it with an agreed Statement of Facts which he read into the record with the consent of counsel for the accused.

The Statement of Agreed Facts was accordingly admitted as exhibit 1.

Counsel for the accused confirmed to the court that the accused understood and accepted the agreed facts as correct; that he had explained the essential elements of the charge of culpable homicide to which the accused had pleaded guilty; and that the accused's plea was a genuine and informed admission of the offence and essential elements….,.

A reading of the Statement of Agreed Facts leaves the court in no doubt that the tragic death of the deceased arose from senseless considerations and could have been avoided if the accused had not allowed her emotions to override reason. The agreed facts, without regurgitating them, can be summarized as follows:

1. The accused (36 years old) and the deceased (55 years) were wife and husband and were at home on the fateful day together with their only child - an 8 year old girl.

2. The couple was in their bedroom when, around 1900hrs, the deceased received a message on his mobile phone. The accused demanded to read the message but the deceased refused to let her read the message nor to divulge to her the contents of the message.

3. It is this refusal by the deceased to divulge the message contents or avail his phone to the accused which angered the deceased and culminated in a heated verbal exchange between the two.

4. The verbal exchange degenerated into a physical engagement with the deceased assaulting the accused with fists and kicking her. The assault was perpetrated upon the accused all over her body and was applied upon her indiscriminately.

5. The accused's reaction to the assault being perpetrated upon her was to run into the kitchen from where she armed herself with three kitchen knives. The kitchen knives, all smeared with dried blood, were produced as exhibit 3(a);(3b) and 3(c).

Of the 3 knives, one is a bread knife, another one curved and the third one has a straight blade. Although the knives were not measured in their dimensions, this is not an omission of any great moment because what is not disputable is that one or another or all the knives were used to inflict wounds of such magnitude on the deceased…,. What is, however, important to record is that the wounds were of such severity that the deceased succumbed to them.

6. The deceased was not deterred by the accused's arming herself with the knives and persisted in the assault upon her; persisted to which she reacted by randomly attacking the deceased with the knives and inflicting cuts and injuries on the deceased's body as detailed in the postmortem report, exhibit 2, produced by consent.

The injuries inflicted upon the deceased also appear from the photographs taken of the deceased's body. Nine photographs were produced in all by consent. They show that the injuries are gruesome; that is to say, they are unpleasant and shocking to look at. There is also a lot of blood on and upon the deceased's body and on the tiled floor where the body of the deceased lay.

7. The accused got the better of the deceased as the deceased succumbed to the injuries inflicted upon him with the knives. Upon getting the better of the deceased, the accused went out of the house and made a report of what had happened to a neighbour, Kraisheilah Shasha, who mobilized other neighbors and proceeded to the accused and the deceased's house aiming to assist but found the deceased already dead.

Doctor Mapunda subsequently conducted a post-mortem examination on 28 February 2015 and compiled his report…,. He attributed the deceased's death to post hemorrhagic shock. The following are some highlights from a reading of the post mortem report.

(i) Clothing: body remained in lower and upper attire which was blood soaked. The court noted this from the pictures.

(ii) Old injuries: the body did not have any.

(iii) There was no evidence of resuscitation attempts seen upon an external examination of the body.

This would accord with the agreed facts which reveal that after the deceased had been incapacitated or after the accused had gotten the better of the deceased, she did not do anything further on the deceased but went out of the house to summon a neighbour.

(iv) The body of the deceased had lacerations, bruises, abrasions, stab and cuts consistent with use of sharp force.

(v) A head, face and neck examination did not reveal evidence of an injury due to blunt trauma. However, on the right side of the neck, there was an obliquely running stab/cut wound of clean cut margins and sharp angles at the corners measuring 3.5cm and gapping by 1.5cm at the centre. The depth of the wound was severe enough to cut the jugular vein.

(vi) On the anterior torso, just below the right nipple, there was a stab wound measuring 2.0cm x 0,8cm. The wound was within the pectoral muscles and not penetrative.

(vii) The elbow region had a deep incisional wound 0.6cm x 1.5cm.

(viii) Pelvic walls within the right trigonal area had a stab wound 10cm and gapping by 0.4cm.

The doctor further commented on what he called “pertinent postmortem findings” as follows:

(a) 4 stab wounds on the body.

(b) 4 incisional wounds on the right side of the body.

(c) Degree of force used – dependent on the characteristics of the weapon used; nature of movements of the victim at time of injury: mild, moderate to severe force used.

(d) Nature of injuries – grievous to fatal.

(e) Weapon of causation – a pointed, bladed, sharp edged longish weapon.

(f) Mechanism of death: loss of blood amounting to at least one third of the blood (5–6 litres) causes imminently circulatory failure and precipitates death in minutes to seconds.

(g) Proximate cause of death: hemorrhages and shock.

In summary, therefore, the deceased lost a lot of blood due to the stab wounds and did not receive immediate and urgent medical attention which would have been required to stop the bleeding….,.

Whilst death was not intended nor foreseeable by the accused, she certainly acted with a high degree of negligence in her conduct and failed to guard against the possibility that her actions might result in death.

Stabbing a person in the neck with such force as would inflict a wound measuring 3.5cm x 1.5cm in depth, such depth being severe enough to result in the severing of the jugular vein, shows a high degree of negligence. The use of inherently dangerous weapons in the form of knives to ward off the attack by the deceased was in itself negligent. No evidence was adduced before the court that the assault on the accused by the deceased could not have been avoided by the accused resorting to other forms of defence than to consciously proceed to the kitchen and to select knives as defensive weapons….,.

The facts of this matter are borderline between culpable homicide, as defined in section 49(b), and murder with constructive intend, as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act….,.

Section 47(1)(b) of the Criminal Law (Codification and Reform) Act defines murder as:

“A person who causes the death of another person:

(a)….,.

(b) Realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

By contrast, section 49(b) of the Criminal Law (Codification and Reform) Act provides as follows:

“Any person who causes the death of another person –

(a)…,.

(b) Realizing that death may result from his or her conduct and negligently failing to guard against that possibility shall be guilty of culpable homicide and liable to imprisonment for life or any shorter period or a fine up to or exceeding level fourteen or both.”

The distinction between the two is narrow in that with respect to a contravention of section 47(1)(b) of the Criminal Law (Codification and Reform) Act the test is subjective. The accused must have realized that his/her actions may cause death but despite the realization continued to engage in his/her unlawful conduct which results in death.

With respect to section 49(b) of the Criminal Law (Codification and Reform) Act the accused must be shown/proved to have realized that his/her actions may result in death but failed to ensure or guard against the possibility of death. The test is objective in that the court enquires as to what a reasonable person would have done in the circumstances.

In casu, the accused armed herself with lethal weapons (knives), and, in using them to defend herself against the assault perpetrated on her by the accused, just randomly stabbed the deceased without caring or guarding against the possibility that her actions would result in serious injury or death….,.

Accordingly, and as a sequel to the confirmations by counsel for the accused, the court formally convicted the accused of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as it was entitled to in terms of the proviso to section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9.07].

The court was satisfied that on the basis of agreed facts as aforesaid, the accused was guilty of the offence of culpable homicide and noted that the concession by counsel for the State, to agree to the lesser charge of culpable homicide, was properly informed and given….,.

The court took note of the fact that the offence arose from a domestic dispute.

The deceased refused to let the accused read a text message which the deceased had received on his phone. The accused got angry over the deceased's refusal to divulge the message.

In the court's view, the accused's anger was not justified. Whatever message which the deceased received was not intended for the accused otherwise the deceased would have conveyed the message to her. The accused simply could not respect the deceased's right to privacy. The court was not told as to why the accused demanded to read the message.

Section 57(d) of the Constitution provides that every person has the right to privacy of their communications. There is no law which provides that a husband or wife has a right to infringe on the privacy of the other's communications.

The accused's insistence that the deceased should divulge a communication made to him on his phone was in itself an infringement upon the right of the deceased to privacy of communication. The deceased was lawfully entitled to refuse to divulge the message he had received on his phone to the accused - albeit the accused being his wife. In a way, by insisting on the deceased that he divulges the message, the accused was the cause or torched the altercation which ended up with disastrous consequences.

It is the court's view that society should learn to respect privacy of communications. Many a time, the cellphone has been cause of matrimonial quarrels and domestic disputes because couples do not respect each other's rights to communications made or received. A cellphone is materially a gadget which is intended to ease communications between persons. Almost every human being desires to own a cellphone in order to be able to communicate with others easily and with speed. There are various other uses to which a cellphone can be applied and the court will not debate them. A lot of cases come before the courts in which a spouse will have invaded the private communications of another by going through messages and other communications on the other spouse's phone. This practice should be deprecated. It amounts to investigating or eavesdropping on one another.

Usually spouses who do this will be aiming to find evidence of wrongful conduct by the other. Eavesdropping on another's cellphone is evidence of lack of trust in that other person. Courts are flooded with cases where couples or spouses seek to prove wrongful conduct by the other using evidence in the form of messages retrieved from another spouse's phone. Such evidence, unless obtained with the consent of the owner of the phone would have been illegally obtained in contravention of the rights of every person to the privacy of communication as guaranteed by section 57 of the Constitution and evidential rules relating to admissibility of illegally obtained evidence should be applied.

Whilst the consequences of such invasion of privacy are varied, they may end up, as in this case, in parties or spouses engaging in physical confrontation. Physical confrontation between persons is inherently dangerous as it results in injury - if not death. An untrustworthy or promiscuous spouse will not be deterred from engaging in promiscuity because of the other spouse has access to the promiscuous spouse's cellphone. Cellphones do not create or promote bad behavior per se. It is the person, with or without a cellphone, who is characteristically bad. People use the cellphone to further their ends. It is people who abuse cellphones. The court, whilst accepting that the argument between the accused and the deceased arose from a misunderstanding involving a cellphone, will not blame the cellphone in this case but the accused….,.

Counsel for the accused also argued, forcefully, that the court should consider that this matter was a domestic dispute where emotions and tempers are usually inflamed. He quoted the cases of S v Mkize 1979 (1) SA 461; S v Meyer 1981 (3) SA 11 and S v Boars HH17-88.

The general principle enunciated in the cases is noted. However, in those cases, these was evidence that the accused persons were under emotional stress or depression. In the present case no evidence was laid before the court to prove that the accused acted under emotional stress.

Even accepting that this matter be classified as a domestic violence case, the accused was the author of the altercation. She had no reason to insist upon seeing or knowing a message not intended for her. The courts have lamented the upsurge in cases of domestic violence and the court must play its part by adding its voice in disapproving of domestic violence by imposing exemplary sentences which, hopefully, will not only punish the offender but deter like-minded would be offenders....,.

The submission by counsel for the accused that the court should consider imposing a sentence of community service would trivialize a serious offence and such a sentence would be disturbingly disproportionate to the offence committed by the accused and an affront to society's sense of justice. It is the kind of sentence which would lead to the public losing confidence in the criminal justice system.

An appropriate sentence in this case is one that should not create an impression in the minds of good thinking members of the society that courts condone such conduct as was exhibited by the accused....,.

It is inevitable that the accused deserves to be sentenced to a custodial sentence....,.

10 years imprisonment of which 2 years imprisonment shall be suspended for 5 years on condition that the accused shall not within that period commit any offence involving the loss of human life as defined in sections 47 or 49 of the Criminal Law (Codification and Reform) Act.

HB88-12 : THE STATE vs LOVEMORE ZULU
Ruled By: MAKONESE J

The accused was charged with the crime of murder; it being alleged that on the 25th of November 2011, and at homestead of Borehole 33 Village, Chief Mvutu, Victoria Falls, you wrongfully and unlawfully and intentionally killed Delight Ndlovu a female adult aged 34 years.You pleaded Not Guilty, and, accordingly, ...

HMT13-18 : THE STATE vs PATRICK KASHIRI
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

The accused pleaded not guilty to a charge of murder proffered by the State.

It is alleged, by the State, that on 19 February 2017 the accused unlawfully caused the death of Getrude Chamatumba by stabbing her with an okapi knife twice on the right shoulder, once on the chest and once on the neck with an intent to kill 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.

The accused's defence was that he did not have an intention to kill the deceased. He pointed out that he was extremely provoked by the deceased's utterance that it was his problem that he could not read that the tablets the deceased was taking were for HIV and AIDS. He was further provoked by the deceased who poured on him water she had used to bath a child with. The accused then lost self-control and stabbed the deceased. He thus denied having intentionally caused the death of the deceased but admitted to having committed culpable homicide as he reacted under extreme provocation.

As deduced from the State papers, defence papers, and from evidence of witnesses, the brief facts of the matter are as follows:

The accused and the deceased, who were lovers, cohabited and lived as husband and wife in Epworth. They had misunderstandings over children born to them from other unions and this prompted the deceased to leave the accused in Epworth while she proceeded to N'anga Village, Buhera.

On 18 February 2017, the accused followed the deceased at the rural home. The discussions for possible reconciliation were futile. On the fateful day, the accused then stabbed the deceased causing injuries from which the latter died.

It is important, at this stage, to note that the deceased was stabbed with a sharp object. According to the State, it was an okapi knife which was tendered in court as an exhibit through the investigating officer, while the accused stated that he used a pair of scissors he obtained from one of the huts.

Given the circumstances of the case, as outlined by the State and defence, a lot of aspects are common cause. The only issue to be decided by the court is whether or not the alleged provocation is sufficient to vitiate the requisite intention. In other words, the court is to decide whether or not the accused had the requisite intention to kill the deceased.

It is worth mentioning that evidence of 15 State witnesses was formerly admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Three witnesses, namely, Musa Bulani, Shepherd Nzengende, and Shakeman Rakafa gave oral evidence.

Musa Bulani, a brother to the deceased, narrated how the accused approached their homestead in a bid to reconcile with his wife, the deceased. The two failed to find each other and hence, for the night, the accused shared the bedroom with the witness. On 19 February 2017, the accused, who had earlier been escorted to the bus stop enroute to Harare, made a u-turn pointing out that one of his wife's sisters had suggested he goes back and be assisted to reconcile with his wife, the deceased. Upon return, the accused and the deceased did not agree. They exchanged harsh words following which the deceased poured some water which she had used to bath her son on the accused.

The accused moved to a distance and sat on a chair to dry up his clothes. At the time the water was poured, the State witness, Stephen Nzvengende, had arrived to take the witness, Musa Bulani, for church. While the witness was having breakfast, his attention was roused by a scream from the deceased who was by then at the toilet/bathroom. The scream propelled the witness to rush out to investigate. He observed the deceased in a state of nudity with blood flowing while the accused was standing by holding a knife. The witness picked a log and advanced towards the accused who then fled while holding a knife.

The deceased was taken to hospital, and, on 27 February 2017, she passed on.

Stephen Nzvengende's evidence tallied on material aspects with that of Musa Bulani. The witness initially observed the deceased pour water she used to bath the baby on the accused who then sat in the sun to dry up. He later observed the deceased go to the toilet/bath. It was while at the bathroom that the accused followed the deceased who screamed for help.

The witness observed the accused stabbing the deceased several times with a knife.

Both witnesses generally gave their evidence well and they impressed the court as sincere witnesses.

The last witness who gave oral evidence is one Sergeant Major Shakeman Rakafa who was the initial investigation officer of attempted murder charge. The witness recounted how, on 19 February 2017, he, in the company of other police details, proceeded to Chimumvuri Business Centre where the accused had been apprehended by villagers for stabbing the deceased. The witness recovered an okapi knife from the accused and proceeded on all preliminaries leading to the arrest of the accused.

The witness then took the accused and the exhibit, an okapi knife, to the station.

On 27 February 2017, the deceased passed and the charge was upgraded from attempted murder to murder. The witness was firm that the okapi knife tendered in court, although it did not have blood stains at the time of production, was the okapi knife he recovered from the accused.

We had no reason to disbelieve the witness' testimony moreso given the accused's confirmed warned and cautioned statement revealed the accused used a knife.

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

He pointed that he stabbed the deceased with a scissors he had obtained from the homestead of the deceased. He was adamant that he did not bring an okapi knife from Harare when he visited the deceased for possible reconciliation.

It was apparent, from all the evidence, that the accused stabbed the deceased occasioning injuries from which she later died on 27 February 2017.

The issue to be decided on is whether or not the accused had the requisite intention to kill the deceased given the defence raised.

From the confirmed warned and cautioned statement, and the Defence Outline, and evidence of the accused, he was provoked by the fact that the deceased refused to reconcile with him then she poured hot water on him and that she mocked him for being illiterate and thus failed to read that she was partaking of “HIV AIDS” tablets.

The defence of provocation is provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23], in section 239, which states:

“(1) 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 may be, with the intention or realisation referred to in section 47, the person shall be guilty of murder.”

It is apparent that provocation is not a complete defence. For provocation to qualify and succeed as a partial defence to a murder charge, leading to a conviction of culpable homicide, certain requirements must be met. In cases decided in the past it has been shown that the provocation must have been so intense as to negate intention on the part or the accused or so intense as to induce complete loss of self-control on the part of the accused.

See S v Mafusire 2010 (1) ZLR 417; S v Moses Saunyama HH581-17…,.; and S v Masina 2010 (2) ZLR 498.

In S v Masina 2010 (2) ZLR 498 it was held that for provocation to reduce murder to culpable homicide, it must be such as would lead the accused to act without intention, or with intention but having completely lost self-control, the provocation being sufficient to make a reasonable person in his position and circumstances lose self control.

Given the circumstances of this case, the water which was poured on the accused was used to bathe a baby, as such, it could not have been hot. Admittedly, the accused could have been enraged by this, but, he had time to cool off as clearly he did not lose self-control. His reaction to the pouring of water was to sit in the open, on a chair, so as to dry up.

Assuming the accused was mocked over illiteracy in failing to detect the deceased was taking HIV drugs and thus could have been infected this was provocation which would incense and occasion loss of self-control.

The reaction of the accused to the alleged mockery was calmness such that one wonders if there were such utterances at all - moreso given the other witnesses at the scene did not hear such utterances. The reaction by the accused seems to support the State witnesses' version that failed reconciliations and pouring of water occurred. Then, some time later, when the deceased was bathing, the accused attacked in a move calculated to revenge.

The accused did not react instantly and spontaneously to any provocation as a sign of showing loss of self control. The accused, in a calculated and calm manner, proceeded to the room where he slept the previous night. If we accept the accused's version, he then took a pair of scissors which he had earlier seen in the room in which he had put up for the night. He then followed up the deceased who was bathing, and, in a state of nudity, he stabbed her.

The stance of remaining calm and collected and then later go to collect a weapon and proceeded in a move likened to laying an ambush on an unsuspecting bathing deceased actually lays bare intentional attack as opposed to conduct occasioned by loss of self-control.

Upon being confronted, the deceased cried out for help and requested the accused to go away. The accused persisted even when the deceased took to her heels he pursued, tripped, and stabbed the deceased in a manner indicative of intention to accomplish a set goal.

Clearly, given the calmness and time of reaction by the accused he cannot be viewed as having reacted in a manner that a reasonable person placed in the same circumstances as the accused could have reacted.

In the circumstances of this case, the defence of provocation cannot be sustained.

A close look at section 239(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] buttresses that the defence is not available for persons capable of formulating an intention to exert revenge. Section 239(2) of the Criminal Law (Codification and Reform) Act states:

“(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that -

(a) He or she did have the intention or realisation referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;
the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

Given the circumstances of this case, the accused falls within section 239(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) and thus the defence of provocation cannot be sustained.

The sentiments of Mathonsi J in The State v Best Sibanda HB139-18, when he dismissed the defence of provocation, ring true in circumstances of this case. The Honourable Judge stated:

“It occurs to me that the accused falls squarely within the provisions of section 239(2). This obtains from the fact that provocation, by its very nature, connotes instantaneous and spontaneous reaction to phenomena in which the actor does not have any opportunity to formulate a strategy but acts on the spur of the moment having lost self-control in response to actions of another.”

In casu, there was no spontaneous reacting or indication of reaction at the spur of the moment consistent with loss of self-control.

In closing submissions, the defence conceded that the reaction of the accused to provocation was not sudden but more of a calculated reaction.

For provocation to succeed as a defence the reaction must be spontaneous showing loss of self-control and thus eliminating intention. The remarks by Lewis JA in George Tsiga v S AD 77/76 are true in so far as they clearly spell out the need for the reaction to the alleged provocation being sudden. The Honourable Judge of Appeal remarked that;

“The reaction to the provocation must be sudden in the sense that the person provoked acts on the spur of the moment and in circumstances where he has temporarily lost his power of self-control and does not appreciate what he was doing.”

In casu, the accused exercised self-restraint after water was poured on him. He sat down to dry himself. After insults were hurled at him he took his time and when the deceased was bathing he then went on to arm himself and proceeded in a furtive manner to attack the deceased. This clearly depicts a man who knew what he was doing and was capable of formulating an intention as he did not lose self-control but exercised self control.

See S v Stephen 1992 (1) ZLR 115 (H)…, where it was held that:

“Once a person is capable of some self-control of his actions he becomes capable of forming mens rea.”

The accused might have been angered by rejection, the pouring of water, and mockery over illiteracy, but, remaining calm and collected is a clear indication of self-control. There was nothing that he did to show that he reacted in the heat of the moment without applying his mind to his actions.

In the case of Zimpack (Pvt) Ltd v Magarabi SC196-94 it was clearly spelt out that provocation should only be accepted as a partial defence if there was spontaneous reaction showing loss of control - mere anger and resentment is insufficient. See State v Best Sibanda HB139-18 and The State v Ranch HH515-17.

Having pointed out that the alleged provocation in this case is not sufficient to negate intention to commit the crime, the court has to decide on whether or not the accused committed the offence of murder with actual intention or legal intention.

In the case of S v Lloyd Mukukuzi and Another HH577-17 the court aptly formulated the test for intention when it stated that in cases of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the question is whether when the accused engaged in the conduct complained of, he had formed an intention to kill as defined in section 47(1)(a).

If he did not have the relevant intention to kill the deceased, the question becomes whether he realized that, in “stabbing” the deceased in that manner, there was a real risk or possibility of death occurring, but, notwithstanding such realization, he continued to engage in that conduct which then culminated in death.

Actual intention was ably described in the case of S v Mangwanda 2002 (1) ZLR 574. The court held that for a court to convict an accused of murder with actual intention the State must prove beyond reasonable doubt that:

(a) The accused desired to bring about death of his victim and succeeded in completing that purpose; or

(b) While pursuing another objective, the accused foresaw the death of his victim as a substantially certain result of his activity and proceeded regardless.

In respect of the second scenario, it is clear that it is the reckless disregard of the risk associated with the conduct which provides the requisite mens rea in the case of a specific intent crime like murder.

In the present case, the accused set out to revenge for the failed reconciliation, and, that in total reckless disregard of the risk associated with his conduct stabbed the deceased on the neck and shoulder which are vulnerable parts of the body.

The stabbing was in circumstances he foresaw that death was substantially certain to occur.

Given the nature of the weapon, a sharp object, okapi knife or scissors, and the number of blows aimed at a vulnerable part of the body, one cannot fail to detect the mens rea of actual intention.

In S v Mema HB143-13 the court made it clear that the nature of attack, weapon used, and position where attack is directed at are some of the factors to consider in deciding the intention of the perpetrator.

In S v Mema HB143-13 it was held that actual intention is present when the accused sets out to cause death of the deceased and where he foresaw death was substantially certain to occur.

I must mention that we found no reason to disbelieve the State witness, Musa Bulani, Stephen Dzvengede, and Sergeant Major Shakeman Rakafa on the murder weapon. This was moreso upon considering the totality of the evidence and the accused's confirmed warned and cautioned statement. This statement was recorded when events were still fresh in the accused's mind and he indicated, just like the State witnesses, that he used a knife.

It appears the change of heart on the murder weapon came in during trial as a way of negating premeditation given the accused would be held to have brought the knife from Harare in anticipation of rejection.

Even if there was evidence that the accused used a scissors, as he mentioned, the issue of intention has been illustrated by the manner in which he stabbed the deceased. Given the finding that there was no extreme provocation occasioning loss of self-control it follows the accused had the requisite intention to commit the crime.

During the defence case the accused raised the defence of self-defence pointing out that he was struck with a stone on the mouth by the deceased.

It was apparent from evidence adduced that the accused is the only one who spoke about this attack on him by a stone as he moved away into Musa Bulani's room. Interestingly, this defence was not pursued even in closing submissions.

The accused later engaged and pursued the deceased who was bathing, as evidenced by the running out of the toilet/bathroom in a nude state.

This sequence of events clearly shows that when the accused stabbed the deceased he was no longer under attack - assuming it had occurred.

The defence of self-defence, as provided for in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] shows that certain requirement have to be met for this defence to be sustained as a complete defence to murder. The requirements can be summarized as follows:

1. That there is an unlawful attack.

2. That the conduct was necessary to avert the attack.

3. That the means used to avert the unlawful attack was reasonable.

4. That harm caused was caused to the attacker.

All these requirements have to be met in order for the defence to be availed to an accused person.

In this case, given the circumstances of the case, as postulated by the accused, he escaped after being struck with a stone, as such, he was no longer under attack. The means used was unreasonable given the deceased was in the bathroom/toilet and not in any attacking mode to warrant being stabbed in the neck as occurred.

We took this issue, of self-defence, as not having been raised seriously but given as a gamble in the event that the provocation defence raised failed.

Generally, the accused lacked the disposition of telling the truth. Both defences, of provocation and self-defence, cannot be sustained in the circumstances.

The State has discharged the required onus and proved, beyond reasonable doubt, that the accused took out the murder weapon with an aim to stab and kill the deceased by stabbing her on the chest, neck and shoulder in circumstances where death was substantially certain.

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]....,.

What further aggravates the offence is the total disregard of the deceased's feelings. She was no longer interested in staying with the accused as husband and wife. For her to be stabbed in the manner that she was stabbed because the accused did not accept rejection is clear indication of superiority complex on the part of the accused.

Courts have expressed their displeasure on the use of violence as a tool of resolving disputes by passing severe sentences on the perpetrators of violence.

In this case, the violence is gender-based and it was meted out in the most cruel, inhuman, and degrading manner. The deceased was attacked in a nude state while in the privacy of a bathroom. See The State v Robert Tevedzayi HH206-18 where Tsanga J sentenced the convict to 35 years imprisonment for gender based violence occasioning the death of his wife.

In State v Robert Tevedzayi HH206-18 the learned Judge expressed displeasure at gender based torture, inhuman and degrading treatment. See also S v Arnold Jeri HH516-17 and S v Chimbira HH558-15.

A conviction of murder with actual intention attracts severe punishment - including life imprisonment and/or capital sentence. The legislature, in enacting the penal provision for murder with actual intention under section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], underscored the gravity of the offence.

In the present case, the accused used a lethal weapon, an okapi knife, possession of which is unlawful in terms of our law. The blows were forceful and aimed on vulnerable parts of the body - the chest, neck, and shoulder. Such cruel intentional gender-based violence occasioning loss of precious human life should be visited with an appropriate sentence which will not only send warning bells to perpetrators of violence in general but domestic and gender based violence.

The infraction of other people's rights, through violence, is unacceptable in a progressive and civilised community. It ought to be discouraged by the courts - moreso given it occasions harm to the society at large.

In this case, a mother was brutally murdered for ending a relationship with the accused.

Having considered all mitigatory and aggravatory factors and circumstances of this case, the removal of the convict from the society is called for. It is hoped that the sentence will deter the accused and like-minded violent people in the community.

As we pass sentence, we are alive to the universal sentencing principle that in exercising sentencing discretion the court should seek to strike a balance between the offence and the offender while at the same time tempering justice with mercy so as to ensure the societal interest of proper administration of justice. The accused is sentenced as follows:

25 years imprisonment.

HH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

The accused, Madalitso Ranchi, a male adult, was charged with murder in that on the 25th of July 2015, at B37 Beatrice Location, Beatrice he had unlawfully, and with intent to kill, murdered his wife, Pamela Muzondo, or realising that there was a real risk or possibility that death might result, had struck the deceased with an unknown object thereby causing injuries from which the said Pamela Muzondo died.

The accused pleaded not guilty. The essence of his defence was that he never intended to kill the deceased, but had lost control after finding her with a lover.

The State led direct evidence from two persons in its line of witnesses. The direct evidence came from Susan Unati Moyo the deceased's daughter and step-daughter to the accused. Stanford Bonde, the alleged paramour, also gave evidence.

The witnesses whose evidence was accepted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] included that of Laina Muzondo, the mother of the deceased, Ganizani Ranchi, the brother of the accused, Kudakwashe Hwari, a cousin of the deceased, and Dzingarai Brighton Mozorodze, a member of ZRP stationed at CID Beatrice.

The post-mortem report sworn to by Dr Mauricio Gonzalez was also admitted into evidence by consent.

It was not in dispute that the accused had killed the deceased. The core issue for determination at the trial was whether he had indeed done so out of provocation from discovering his wife's infidelity.

The State's evidence

Susan Unati Moyo: She is 11 years old. She told the court that the day in question was a Saturday morning (25th of July 2015), when her mother had been washing plates outside but had not finished. She had also started doing laundry but had not finished when she had been called inside the house by the accused.

She herself was playing outside with her young brother.

Whilst at the sink outside she had heard her mother cry out “maiwee”. She had not seen her mother come out of the house again. Her brother, who was feeling hungry, had gone to knock at the door. The accused had come to the door and had given them $50 to go and purchase food. They had bought biscuits and drinks. They had returned and had eaten outside. Thereafter, the accused had told both of them to go to their grandmother's house with specific instructions that they were to say that they had been sent there by Stanford Bonde. The accused told them that their mother had gone to work and had given them 50 cents to use on their way to their grandmother's. They had arrived towards sunset and she had told her grandmother as instructed to say.

In cross examination, she said she knew Mr Bonde as an elder at their church. He had not been a visitor at their house on either the Friday or the Saturday. She had last seen him at church the previous Sunday.

Stanford Bonde: His evidence was that he knew the deceased as a fellow parishioner at Living Word Citadel. He also knew the accused as the accused was, at one time, the pastor. The accused had later formed his own church after facing fraud charges for the double sale of Stands. He had elected to form his own church rather than face censor by the church.

On the 27th of July 2015, Laina Muzondo, the deceased's mother, had come to his house looking for him. She had stated her grandchildren had come to her house on his instructions and wanted to know if he had seen the deceased on that day that he had instructed the children to come. He had told her that he had not sent the children at all to her and neither had he seen the deceased on the day in question. He had referred her to the accused's mother's house. She had returned with the accused's mother and two of the accused's brothers. They told him that they had gone to the deceased's residence and had broken the door and what they had found had been a letter purportedly written by Pamela to him. He had told them that it was not possible for Pamela to have a written such a letter unless she had lost her mind.

The contents related to his coming to visit her at night on the pretext of going for prayers. The letter also related how she had had to abort his child and yet he was no longer coming to visit.

He told the court that he had never had any relationship with the deceased and therefore found the letter strange and unlikely to have been authored by the deceased. He had told the relatives as much. He had last seen her on the 19th of July 2015 at church.

When shown the letter he had suggested that the police be contacted instead of wasting time.

On the 28th of July he had been summoned to the police station by the police. That same afternoon he had, again, been visited by Laina Muzondo and the deceased's sister who wanted an explanation regarding the letter and if he knew where Pamela was. He had suggested that, for the sake of progress, it would be best to ask the children, in his presence, who had really sent them since he had never done so. They had advised him that they would return as they needed to go to the house to fetch the children's clothes as the children had come to their grandmother's without carrying any clothes.

He had gone to Laina Muzondo's house later that day and Susan Unati Moyo had been called. When asked where her mother had been on that day Susan had narrated the events of that day which have already been captured. She had then also revealed that they had been sent by the accused and his admonition that they were not to reveal that he was around.

They had proceeded thereafter to file another report at the police station. The police had come to his house the following morning and they had gone with him to the deceased's residence together with the accused's brother. As the place had a foul smell, in tracing its source, the police had requested the bed to be lifted. That is where the deceased's body had been found - in a dish. He had also spent that night in detention under investigation but had been subsequently cleared.

As regards the letter, he told the court that the police had established from the accused, once he had come back into the country and had been arrested, that he was the one who had in fact authored the letter from a page taken from his own diary. It had also been established that it was the accused's handwriting. Asked, in cross-examination, whether he had ever visited the accused's house, he explained that he had done so at the time when the accused was still their pastor, when, as a church elder, he and others used to pass through the pastor's house to collect chairs.

Core issues from the admitted evidence

Of significance, from Laina Muzondo's admitted evidence, was that when she had checked with her neighbours, after learning that the deceased had not gone to work on the 28th of July, they confirmed having last seen the deceased on the 25th of July 2015 which was a Saturday.

Of importance, from Ganizani Ranchi's evidence, was that when they went into the house on the 28th of July, after the deceased had failed to show up for work, the only suspicious thing they had found had been the letter purportedly written by the deceased which was then taken by the accused's brother.

From the admitted evidence of Dzingirai Brighton Mazorodze, from the Criminal Investigation Department, was that after the discovery of the body, on 30 July 2015, he had searched the whole house and observed blood stains on the door wall, drops of blood from the door wall on the floor to the bed, and stains of blood on a cardboard box used as a washing basket.

From the admitted evidence of Dr Mauricio Gonzalez was the crucial fact that the deceased had died from haematoma and head trauma due to assault.

The Accused's Evidence

The accused narrated how he had returned home on Friday the 24th of July 2015 from Malawi where he had travelled for three weeks to preach. He would go often to Malawi. He had knocked but had received no answer. The door was unlocked and he had opened. He heard voices inside. The children were sleeping. He had proceeded to the bedroom where he had found a half-clad Stanford Bonde sitting on his bed who had his trousers on but had no shirt. His wife wore a short nightie and no panties. Stanford Bonde had tried to talk to him but he had just stared at his wife in disbelief while Stanford Bonde had taken his shirt and had walked out.

He had checked on the floor and observed a used condom. He had asked his wife what had taken place since he loved her very much. She had insisted on asking for forgiveness.

In anger, he had asked her to leave and go to the dining room. She had insisted on explaining herself and that is when he had pushed her hard through the door opening which had no door frames but sharp brick edges. She had hit her forehead and had fallen backwards but facing upwards. She was bleeding.

He had washed the wound using water from a big green tub that his wife kept in the bedroom. He had also removed her night dress intending to take her to hospital. He had dressed her in her underwear, a black skirt and blue T shirt. He had tried to use a towel to stop the haemorrhage but she had continued bleeding. All the while she had groaned in pain before taking her last breath and falling down dead.

He had thought of waking the children but had realized it was not necessary. Thereafter, he had mopped the blood on the floor so that the children would not see it as they were in the habit of coming to the bedroom. He had taken the body and put it in the green tub because he did not want the children to see the body when they woke up the following morning. He had put the green tub under the bed and had slept in the dining room.

The children had woken up the next morning without noticing what had happened. He had told Susan Unati Moyo that her mom had gone to work.

At around 11am, her young brother had come complaining of hunger and that is when he had given them money to go to the shops. When they came back, and had eaten, that is when he had told them to pack their bags and go to their grandmother's house. He admitted telling them to say they had been sent by Stanford Bonde because their grandmother thought he was in Malawi. He had locked the door after their departure and had proceeded to Malawi.

His father had called him in Malawi to say he should come back as something had happened to his wife but had not told him his wife was dead. By then, of his own volition, he had made up his mind to return and turn himself in so the law would take its course.

Upon his return, on the Thursday night, he had been intercepted by armed police on his way home, at around 1am, to tell his parents what had transpired. He had been locked up and forced to write a statement.

On the Saturday he had been taken for indications all the while with the police telling him what to say.

The accused told the court that they would even stomp on his foot when he refused to do their bidding particularly as regards what they wanted him to say with respect to what he had used to assault the deceased. He had refused to sign the documents.

Suffice it to state they were not part of the record.

In cross examination, he was challenged on the variance of his story with that of the witness, Susan Moyo, on the crucial score that the deceased had been at home on Saturday morning and that she had washed some dishes and done some laundry, which tasks she did not complete because he had called her inside.

He insisted that the incident had taken place on Friday night when he returned and that the children were asleep.

On why the children had not seen Stanford Bonde on either the 24th or the 25th, his answer was that they were fast asleep on the 24th when the incident occurred.

Asked why the deceased would have written a letter to Stanford Bonde if she had been sleeping with him on the night of the 24th, the accused stated that the letter had been written a long time ago when they were in love.

He had not queried the evidence-in- chief by Stanford Bonde that the police had unearthed that the accused had in fact written the letter and this was put to him.

When it was also put to him that he had used an unknown object to assault his wife, he stated that he had just arrived and would not have had a chance to find a weapon.

Additionally, when it was put to him that he was not provoked and that the extramarital relationship was in his mind, he maintained that he did not appreciate what he was doing when he pushed the deceased and that he only came back to his senses later on. He was insistent that the adulterous act was something that he had seen with his own eyes.

On the inconsistency of his conduct with that of an innocent person – that is hiding the body; telling the children to lie; and then fleeing to Malawi, his explanation was that he had been gripped by fear of his in-laws, the police, and, what neighbours would think of him. Primarily, he feared being attacked and another death ensuing.

The Closing Submissions

The State argued that the evidence of its witnesses should be preferred over that over the accused as the latter had not been a credible witness in his evidence. Moreover, he had been shown to have lied on two issues – namely, telling the children not to mention he was home on the day he sent them to their grandmother and also as regards the letter that had been found in the house which the police had unearthed had been written by himself.

In addition, no condom had been found by the family members who searched the house or by the police to lend credence to his version of events and yet they had found his letter which he had left for all to see - on top of the sub hoofer.

The State further argued that the evidence of Susan Unati Moyo, as a child witness, had been given in an intelligent and credible manner. [S v Moyo HH236-16; S v Sibanda 1994 (1) ZLR 394 (S)].

Counsel for the State further argued that the accused was not, at the time, suffering from any acute emotional stress or diminished responsibility and that he knew exactly what he was doing. He relied on the case of S v Gambanga 1997 (2) ZLR 1 where the accused had been found to have known what he was doing under similar circumstances when he killed his wife. He had been found guilty of murder with constructive intent.

He further argued that the accused has the burden of proving diminished responsibility. [S v Jafta Dube 1997 (1) ZLR 229 (H)].

No medical evidence had been placed before this court to show that the accused was suffering from mental disturbance at the time.

Counsel for the State also argued that from his conduct the accused had foresight of the real possibility of death and he had acted recklessly regardless. [S v Mugwanda 2002 (1) ZLR 574 (S); S v Gumbi 1994 (2) ZLR 323 (S)].

In the final analysis, he argued that neither provocation nor diminished responsibility had informed the accused's actions in this case. He therefore urged the court to find a verdict in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Counsel for the accused, on the other hand, emphasised in her closing submissions that the accused had no intention to kill and that he was seriously provoked and lost his senses.

She argued that the evidence of Susan Moyo should not be relied upon as she was susceptible to being coached to lie and could again have lied to the court in the same manner she had done to her grandmother. She emphasized that the child's evidence pointed to the fact that the accused and the deceased lived peacefully, and, as such, the accused would not kill his wife for no reason.

Counsel also highlighted that Stanford Bonde, in his evidence, had not portrayed the accused as a bad person other than the fraud charges that he had faced at one time. Furthermore, she argued that the fact that Stanford Bonde had indeed visited the accused's home meant that it could not be ruled out that he had done so on the night in question.

She put forward that the State was ultimately relying on circumstantial evidence which had to be treated with caution. S v Mlambo HH43-16.

On intention, she argued that any reasonable person would not have foreseen death ensuing. S v Tazvinga 1968 RLR 121.

In her view, there was also reasonable doubt as to whether any weapon had been used. The fact of putting his wife's body and then hiding it was emphasized as indicative of his temporary insanity as no reasonable person would do that. She maintained that had it not been for the adultery, he would not have killed his wife.

In the final analysis, she argued that the accused should be found guilty of culpable homicide and not murder.

The Legal Position

Our Criminal Law (Codification and Reform) Act [Chapter 9:23] recognises provocation as a partial defence to a murder charge in section 239 whereby;

“…, the person shall be guilty of culpable homicide if, as a result of the provocation -

(a) He or she does not have the intention or realisation referred to in section forty-seven; or

(b) He or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self control.”

The defence, as couched, addresses the subjective element under (a), in terms of what the accused actually intended. It further addresses the objective element under (b), in the sense of loss of control where an ordinary person would have lost such control.

When the defence is used in circumstances such as this, where an accused has killed his wife due to adultery, the assumption is that a reasonable person would have behaved likewise hence the justification for a finding of culpable homicide instead of murder.

The accused also relied on diminished responsibility which is provided for in section 218 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

The gist of the provision is that if, at the time of committing a crime, the capacity of a person to appreciate the unlawful nature of their conduct or to act in accordance with that appreciation is affected on account of mental or emotional stress a court can take this into account in imposing a sentence. However, where the acute mental or emotional stress is self-inflicted, then the court may disregard the assertion that responsibility was diminished.

Given that the only witness is dead who could speak conclusively to the fact of provocation apart from the accused, who so asserted, the critical issues in this case was therefore whether the State disproved provocation beyond a reasonable doubt or whether this was simply a case of murderous violence.

Legal and Factual Analysis

There was clearly a conflicting version of facts between what the State witnesses said in relation to this matter and the accused's own narrative of the events leading to the fateful killing.

The ascertainment of the truth therefore has to emerge from an analysis of the testimonies that were heard by this court.

In our view, there was nothing deficit in the evidence of Susan Moyo who told this court that her mother was alive and well on Saturday morning of the 25th of July 2015.

Whilst she was nine years old when the fateful events of that day occurred, she was able to tell the court the exact circumstances of how she and her brother had ended up at her grandmother's. There was no reason to discredit her evidence particularly since it was never in contest that the lie that she had told her grandmother, about being sent by Stanford Bonde, had been one crafted by the accused himself. He had impressed upon her to tell that lie which the accused himself admitted.

He, rather than the witness, Susan Moyo, is the one who showed the propensity for dishonesty.

If there was anyone's evidence to be suspicious of due to the likelihood of lying, it would be that of the accused and not this witness.

As a school going child she had the capacity to relate fully well what she remembered of that day when the accused sent them to their grandmother's house. There is equally a shift away from disbelieving the evidence of children. They have largely been shown to be truthful under optimal circumstances. Empirical research has also shown that the cognitive ability of children of school-going age is just as credible and reliable as that of adults - especially if obtained under optimal conditions. See FIONA RAITT, Judging Children's Credibility: Cracks In The Culture of Disbelief or Business As Usual 744, New Criminal Law Review Vol.13 No.4 Fall 2010…,.

This court was satisfied that Susan Moyo told the court what she knew. There was no accused to bring undue pressure upon her to lie this time since he has been in custody. Furthermore, counsel for the accused cross-examined her respectfully and compassionately in that rare instance where the defence, in relation to a witness from the other side, genuinely confines itself to truth seeking. There was observably no casting aside of this purpose just for the sake of making life unbearable for the witness as is often the case.

Furthermore, her evidence that her mother was alive on Saturday the 25th was also corroborated by the admitted evidence of Laina Muzondo - which evidence was not challenged.

As stated, in a quest to find her missing daughter, she had established that neighbours had last seen her on the 25th of July 2015 which was a Saturday. The accused's evidence that he had found her with Stanford Bonde on the night of Friday the 24th when he returned from Malawi and had killed her for that reason on that Friday night was therefore not true. There was no Stanford Bonde who caused his provocation on the night of the 24th.

We also found Stanford Bonde's evidence to be credible that he had last seen the deceased at church on the 19th of July when she had attended Mass.

Susan Moyo had also stated as much as regards the last time she had seen Mr Bonde.

His evidence, that the police had established that the letter purportedly written to him by the deceased had in fact been written by the accused, was also not challenged when he gave this evidence. If that had not been the case one would have expected that his counsel would have spared no prisoners in revealing the truth at the time Mr Bonde was on the witness stand. Moreover, we took note of the fact that he had been thoroughly investigated by the police and even detained overnight before being found innocent.

Stanford Bonde was also clear in his evidence that the children's grandmother had told him that the children had come without any spare clothes yet the accused, in his evidence, crafted a story where the children had packed their clothes before he sent them away. Susan Moyo's evidence was also clear that what the accused had given them was 50 cents to spend on the way to their grandmothers. She did not mention being let into the house to pack any clothes because that never occurred. He clearly had not wanted them in the house after the fatal scream that Susan had heard on that Saturday morning.

In addition, the admitted evidence of the police officer who attended the scene was to the effect that the search of the room which had been conducted upon discovery of the body had revealed bloodstains. No condom was found. There was equally no mention of a stained night dress which the accused says he removed from the deceased when he dressed her in preparation for hospital.

Furthermore, in support of the State case that the deceased had been assaulted by the accused was the post mortem report which was equally unchallenged as evidence and which clearly stated that the deceased had suffered head trauma due to assault.

For whatever reason, the accused assaulted the deceased; it was certainly not because he was provoked by Stanford Bonde, because there was no Stanford Bonde at his residence on the 24th of July as he alleged nor on the 25th of July when his wife was last seen alive by her children.

This court was satisfied, beyond a reasonable doubt, that the narratives of the State witnesses were true in their essential features.

The accused's disposition for truth-telling, on the other hand, was particularly lacking.

Right from the onset, after committing the murder, he put in motion his own version of “how to get away with murder” by crafting a series of lies. He has clearly continued to imagine in his head that if he continues to regurgitate falsehoods they might just become believable.

His explanation that he returned to turn himself in was obviously false as he headed nowhere near a police station when he arrived. He had returned because his father had called him to tell him something had happened to his wife. It would have been strange for him not to come as he had crafted a lie that he had been in Malawi all along. The fact that his father had not mentioned that he was at all under suspicion made him believe he had gotten away with murder.

The accused's account of his wife's infidelity on the night he says he returned from Malawi was also not only strained but was outrightly implausible.

He had allegedly simply stared at his wife as Stanford Bonde who had tried to speak to him, put on his clothes before calmly walking out of the house only for the accused to then lose his cool when his wife “tried to explain”.

It is also implausible that all the anger he then unleashed, and his wife's moans and groans from pain, would have happened without awakening any of the children whom he said were only a door away.

His whole story of dressing the deceased up to take her to hospital was simply concocted, in our view, to explain away why she was not found in her night dress, if, as he said, the murder had happened on the night of Friday the 24th.

The accused crafted a rosy picture of his marriage to the deceased. It was hard to see why she would have been unfaithful to him if life was as rosy as he depicted.

The State evidence having shown, conclusively, that there was no act of infidelity that the accused stumbled upon, as he claimed, this court is only left to join the pieces, based on socio-legal research, in order to understand what may have been the trigger for the violence.

In Zimbabwe, research has shown that after squabbles about money, jealousy is the second most important cause of violence against women; A ARMSTRONG, Culture and Choice: Lessons from Survivors of Gender Violence in Zimbabwe (Harare, Speciss Print “N” Mail, 1998)…,.

It arises from possessiveness and sexual jealousy or challenge to male behaviour.

This court can only surmise that the jealous demon in him got the better of him that day. At most, it would appear that the accused may have had his own suspicions in his head about his wife's fidelity since by his own admission he frequently travelled to Malawi. But suspicion alone can never be the basis of using provocation as a defence for fatally killing one's spouse.

In any event, and this is the crucial point, the use of the provocation defence in a situation where a spouse is killed because of adultery would be unlikely to withstand survival under our present Constitution. This is because section 52, which accords the right to personal security, categorically prohibits violence at the hands of both private and public actors.

“52 Right to Personal Security

Every person has the right to bodily and psychological integrity, which includes the right —

(a) To freedom from all forms of violence from public or private sources;”…,.

The crucial import of this provision is that by zeroing in equally on freedom from all forms of violence from public as well as private sources, the result is protection from violence within family and domestic spheres as private sources of violence.

The Constitution, as the highest law of the land, embraces a zero tolerance for violence in all instances as a fundamental human right. It is not negotiable.

The domestic sphere happens to be a major source where women in particular encounter the most violence. For an understanding of similar reasons of women's vulnerability when they threaten to leave or at the point of separation or thereafter see also SUE BANDALI, Provocation - A Cautionary Note 22 J.L. & Soc'y 398 1995…,.

It would therefore be ludicrous to then allow a man who kills his wife, due to so claimed infidelity-inspired rage, to get away with murder by harnessing the defence of provocation in order to be treated with compassion by reducing that murder to culpable homicide.

Whatever its historical, biblical, or evolutionary aspects, the use of the defence of provocation in instances of spousal killing is increasingly seen as flawed. For a discussion of the evolution of the defence and its problematic context in present times see K.J. KESSELRING, No Greater Provocation? Adultery and the Mitigation of Murder in English Law, 34 Law & Hist. Rev. 199 2016.

It is regarded as gender biased and archaic not just because of its proprietary and possessory underpinnings but because it does not stand up to logical scrutiny that the reaction of killing is necessarily that of the reasonable person. See "Good Practices in Legislation on 'Harmful Practices' against Women," 2009, 19-20. http://www.un.org/womenwatch/daw/egm/vaw legislation 2009/Report%20EGM%20harmful% 20practices.pdf.

In fact, in our context, the claim for adultery damages, even though equally archaic in its possessory and proprietary undertones, remains recognised often with aggrieved men and women demanding hefty damages from the perceived wrongdoer. See Basil Mukururu v Derick Vori HH174-16; Muhwati v Nyama 2011 (1) ZLR 634 (H); Jhamba v Mugwisi 2010 (1) ZLR 124 (H).

As has been further observed, throughout the world, most married couples encounter insults, suspicions, and confessions of infidelity by their spouse, and yet only a small number resort to killing.

“Drawing on the work of psychologists, one set of commentators has asserted the fallacy of the notion of loss of control:

Angry impulses do not so overwhelm us to the point that we become enslaved by them. We are endowed with a high level of choice concerning how we act - even in relation to the most provocative forms of conduct. Those who lash out when confronted with a distasteful experience do not respond in this manner because of an absence of a meaningful choice. They do so because they elect to do so….,.

[T]he desire to ensure that a loved one does not die in pain (resulting in an act of mercy killing) might be just as powerful as the anger stemming from a confession of adultery. The latter should enjoy no special privilege in the law…,.

[Loss of control requiring that the accused was) 'so subject to passion as to make [them] not master of [their] mind' [is] more akin to a state of automatism than one with the requisite mens rea for murder (NEAL & BAGARIC 2003:247-248)”.

Zimbabwe is a signatory to the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) under which its specific obligations, under Article 2, are:

“Article 2

…,.

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.”

Clearly, insofar as the defence of provocation is available as a partial defence in situations of spousal killing for infidelity, the Criminal Law (Codification and Reform) Act [Chapter 9:23 (the Criminal Code) needs to be clarified with a view to harmonizing it with the Constitution.

The adultery defence for crimes of passion ought to be categorically removed from the ambit of provocation because it increases women vulnerability to violence given that women, and not men, are predominantly, though not exclusively, at the receiving end of crimes of passion.

In fact, the recommendation of the UN Division on the Advancement of Women is that both “honour” and adultery be removed as defences for premeditated killings or “crimes of passion”. (Extracted from GRAEME COSS, The Defence of Provocation: An Acrimonious Divorce from Reality 18 Current Issues Crim. Just. 51 2006-2007…,.).

Our finding is that the accused killed the deceased, not because of any provocation stemming from adultery, but because of his own fears inspired by jealousy. In flinging her against the wall and assaulting her, as the medical report clearly confirmed, he foresaw that death would result and had proceeded regardless.

We find the accused guilty of murder in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]....,.

In aggravation, the State emphasised the lack of regard shown for the sanctity of life. Whilst bearing in mind the need to individualise his sentence, the sentence called for was one that would send a clear message against the tolerance of gender-based violence in domestic settings. This was said to be more so in view of the increase of murders taking place in this context.

As this court found, the accused was guilty of reckless murder....,.

The children have lost their mother and will have to go through life with the trauma of knowing that she died at the hands of the accused – a man they were supposed to look up to as their role model....,.

The appropriate sentence in this case, which fits the offence and the offender, is 20 years.

The accused is accordingly sentenced to 20 years imprisonment.

HH206-18 : THE STATE vs ROBERT TEVEDZAYI
Ruled By: TSANGA J and ASSESSORS: KUNAKA and JEMWA

The accused, Robert Tevedzayi, is charged with the murder of his wife, Abigail Chindavata. She was a mother to his five sons. She was only 36 years old.

The two had been married for about fifteen years. Her husband is alleged to have assaulted her to death using a hoe, an axe, and a metal bar in their bedroom on the night of 12th-13th of March 2017. The incident happened at Village 3 Maryland Farm Compound, Macheke.

He pleaded not guilty to the charge.

In two sentences, he provided his Defence Outline. He had walked into the house and had seen his wife with a lover. The lover and his wife had started attacking him, and, in self-defence, he resisted the attack. During the course of the trial he further added intoxication to his line of defence.

In addition, his far lengthier warned and cautioned statement was also before the court as exhibit 2.

The post-mortem report by Dr Javangwe was admitted in evidence as exhibit No.1. It gave a detailed description of the injuries that had been inflicted and concluded that she had died of severe head injury consistent with mixed blunt/sharp objects. She also had face injuries. One of her ears, according to the report, had been hacked off.

The evidence of her friend, Dainah Matyora, who had attended the scene after the fatal attack, as well as that of the Investigation Officer Panganayi Chando, who attended the crime scene, was not in dispute and was admitted in evidence in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The warned and cautioned statement is vital especially since the accused person sought to depart from some of its material content. It was made and signed on the 21st of March 2017 and confirmed the following day before a Magistrate.

It gave a vivid and chilling account of what transpired on that fateful night. The chain of events had begun on Friday the 11th of March 2017, when the couple had gone to Craiglea Clinic for treatment for a sexually transmitted disease. This was at the accused's behest. He had been advised to buy two injections, one for each of them. His wife had also been given some tablets.

When they arrived home, his wife had proceeded to the local Chairperson's residence. His explanation is that she had done so because she knew that she was the one who had given him the sexually transmitted disease. According to him, his wife had also gone to the police the following morning to report the domestic dispute and had returned home later that Saturday afternoon.

In a bid to look for money to buy the two injections on that same day, the accused had gone to Durlstone Farm where he now normally stayed. He too had returned around 3pm in the afternoon without success. He had told his wife that he had failed to get money to which she had replied that it was his own problem as she had merely accompanied him to the clinic and that he was the one who was sick.

This had enraged him because he was unable to have sexual intercourse with any other woman other than his wife as his wife had “sexually locked” him.

He averred, in his statement, that, as a result, he had not slept with anyone but his wife. As such, this had convinced him that she was the vector of the disease he was suffering from.

A dispute had ensued as a result of her perceived lack of sympathy for his plight. He had enquired where she had slept the previous night and she had told him that she had proceeded to the Chairperson's home. She had also told him that the police wanted them to come to the station that coming Monday as she had also gone there. She had then said that she was no longer interested in going to the police on Monday.

The accused described, in his statement, how, at that point, he had assaulted her by slapping her. She had grasped him by the throat. He had overpowered her and had picked up a hoe which was in the house and had briefly assaulted her with it. She had managed to grab the hoe. He had then picked up a small axe which was also in the house and had effected blows on her face and the head. He could not remember how many blows. He had only stopped assaulting and hacking her with the axe when she fell to ground. Thereafter, he had picked up a metal bar which was also in the house and had further bludgeoned her with it on the face and head. He could not remember how many times. According to him, he had only put down the metal bar when he could hear no more cries and he could see she was limp.

In sum, the full nature of the attack on his wife, according to his warned and cautioned statement, was that he had started off by assaulting her with his bare hands, proceeded thereafter to using a hoe, before escalating the attack to using an axe and concluding, for final measure, with a metal bar. Thereafter he had left the house and had left her lying down. He said he did not know she was dead. He had gone to Durlston Farm where he normally stayed. On arrival, he had tried to kill himself by taking a tobacco pesticide. When people came that afternoon they had found him vomiting and had taken him to hospital.

The metal bar was admitted in evidence as exhibit no.3 whilst the axe was admitted as exhibit no 4. The certificate of weights of both these items was admitted as exhibit no.5. The metal bar weighed 12.90kgs and measured 86cm by 9.5cm width. The small wooden axe weighed 0.58kgs and the wooden handle was 60cm in length.

The Evidence

The accused's minor son, and a Form 3 pupil, who shall be referred to as X, gave evidence. He is the eldest in a family of five boys. He told the court that his father, who was in fact not staying with them, having moved out some months earlier, had come home on the 12th. He was staying at Durlston Farm and would come occasionally. That day, they had eaten and had gone to bed at around 8pm. His younger brother and he were sleeping in one room, whilst two other younger siblings, aged 5 and 2 and a half years at the time, were in the same room and the accused and their deceased mother.

He had been awoken in the early hours by his mother's piercing screams asking him to open the door. She was saying she was being injured. His younger brother, who was with him, had also woken up, whilst he himself had jumped out of the window to try and alert neighbours. His brother had followed. He had tried to call one neighbour who had refused to come on the grounds that he did not get along with the accused. He had managed to find another neighbour, Aaron Simbarashe Chiwara, whom he referred to as Simbarashe, who had agreed to come. Simbarashe had tried to intervene but had been threatened by the accused who held something in his hand although he had said he could not see what it was. They had proceeded back to Simbarashe's house who had then suggested that the two brothers go back home but they had refused, being too afraid to do so.

He told the court that they were always running away from home because of their parent's altercations. When Aaron Simbarashe Chiwara refused to accompany them again, they had proceeded to go and wake up a Mrs Chirombo. She had told them to go and sleep with her son and that they could go home in the morning.

In the small hours of the morning, they had woken up to go home. On their way there they had been met by their younger five year old sibling whom he instructed to ask for fire to light the room. The witness had proceeded to his mother's room and had observed her footsteps at the door. He had called out her name. There had been a deathly silence. He had immediately gone to call a woman called Mai Misheck (Dainah Matyora) and had alerted her that his mother was not answering to his calls. She had brought a torch with her as it was still dark and the boys had followed closely behind her. She had gone in and had immediately seen blood on the deceased's head and had started crying. She had immediately sent them to call one Chijoto who had then brought the police.

In cross examination, he told the court that he had heard his father telling his mother to sit down. He had also heard her cry out that she was being injured.

Asked by the court to clarify the nature of altercations his parents always had, he told the court that they would fight over the accused's failure to provide for the family. Sometimes his mother would go to his workplace to get food. He further told the court that at one time they had left home with their mother and the accused had followed them and assaulted her. On another occasion, the accused had rolled up some tobacco using their exercise books and he had beaten their mother when she reprimanded him. He also confirmed to the court that there had not been any other adult man at the house that night besides his father. He had only heard his mother and father.

The second witness was Simbarashe Chiwara, the neighbour who had come out to try and assist that night.

He described how the accused's son had come knocking vigorously on his door at around 2am whilst calling out that his father was assaulting his mother. He had immediately woken up and had proceeded to the house with X's younger brother whilst telling X to go and alert others. He told the court that he had tried to open the door but it was locked from inside. They had managed to push it slightly and it was at that point that the accused had come to the door armed with a metal bar. He had heard the deceased apparently asking for forgiveness.

The following morning he had been woken up by Mai Misheck's screams. He had rushed there and had seen the deceased lying on the ground and beside her was her youngest child - a toddler. He had observed that the walls were bloodied from the attack on the deceased.

He too corroborated the history of violence and said that it was not the first time that neighbours had been called upon to assist in resolving a dispute. He told the court that the deceased and the accused had had disputes about his failure to maintain the family. He also told the court that the accused had suspicions about wife infidelity. The accused had moved out about a year earlier. On the night in question, he too had not seen anyone else at that house besides the two who were fighting.

The Defence Case

In his defence, the accused reiterated the events of the day as captured in his warned and cautioned statement about going to the clinic for treatment. However, he elaborated on the defence he had introduced in his Defence Outline, which departed from his warned and cautioned statement.

There had indeed been a misunderstanding with his wife that night after supper over her refusal to co-operate about going to seek medication the following day. Angry about it, he had left to go to where he was now normally staying. He had stopped at a bar to ease his mood. He had however returned home when he realized that he had forgotten his clinic cards. He had walked into the house and had seen his wife with a lover. The two had, according to him, started attacking him. He had fallen down and his wife had grabbed him by the testicles. He had not seen the male assailant clearly but had fought both of them. The assailant had managed to bolt. It was then that he had picked up what he thought was a stick but was in fact an axe and started assaulting his wife on what he thought were her shoulders, but was in fact her head, in an endeavour to get her to let go of her grip to his private parts.

He told the court that he had previously heard of his wife's infidelity from the children but had not caught her.

The Legal Position

The accused relied on three primary defences for his actions that night. He relied on self defence arising from the fact that he was defending himself from an attack by his wife and her lover. He also relied on provocation in that he caught his wife with a lover when he abruptly returned home that night. He also drew on intoxication in that he had consumed alcohol that night before he returned home to fetch his clinic cards.

In terms of section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) self-defence and defence of another can be a complete defence where an unlawful attack had commenced or was imminent, or, where the accused believed, on reasonable grounds, that the unlawful attack had commenced or was imminent. Other conditions must be fulfilled. The conduct must be necessary to avert the attack or the accused must believe as such and that they could not otherwise escape from or avert the attack. The means used to avert the unlawful attack must be reasonable in all the circumstances.

Provocation, in so far as it applies to murder, is dealt with by section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). It can be a partial defence to a charge of murder.

Where an accused did not have the intention to kill when he was provoked, then he or she will not be convicted of murder but only of culpable homicide. Where there was an intention to kill, the court has to decide whether the accused lost his or her self-control and killed intentionally, in circumstances where even the reasonable person, faced with that extent of provocation, would also have lost self control.

If the accused lost self-control, and a reasonable person would have done likewise, the accused has a partial defence and will be found guilty of culpable homicide and not murder. S v Nangani 1982 (1) ZLR 150 (S).

However, as highlighted in S v Madalitso Ranchi HH515-17 in cases such as this where an accused has murdered his wife, the partial defence of provocation comes squarely in conflict with section 52 of the Constitution which is clearly protective of those who generally experience violence in the hands of private actors. In other words, violence in the home, for whatever reason, is distinctly constitutionally prohibited.

Voluntary intoxication is governed by section 221(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

Since murder is a crime of requiring “proof of intention, knowledge or realisation of a real risk”, in order to negate intention, the degree of intoxication must be such that the accused did not form the intention or have the knowledge, or realize the existence of risk required.

Where an accused, despite being intoxicated, is still able to form, and did form, the requisite subjective state of mind, the court may regard his or her intoxication as mitigatory to the crime charged.

As to the type of murder, where an accused intends to cause death or where he foresaw that the death was substantially certain to occur, then, in terms of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) he is guilty on the basis of actual intention.

Where, on the other hand, an accused does not have actual intention to cause death, but realizes that there is a real risk that death would result, then, such an accused is deemed guilty on the basis of what used to be referred to as legal intention. S v Mhako 2012 (2) ZLR 73 (H).

Factual and Legal Analysis

As regards self-defence, the evidence of the witnesses was important. X, the son who gave evidence, was very clear that there was no other adult person that night besides his parents when the violence occurred. The persons in the house that night were the witness's parents, himself and three other siblings. The fourth sibling was staying with his maternal grandmother at her rural home.

The accused also did not mention that he had been defending himself from anyone when he gave his warned and cautioned statement. If this had been the case, the gist of his lengthy statement would have been on this precipitating factor as the material cause of the violence.

The fact that the door was locked from inside does not corroborate the evidence of the accused that there was a man in the house that night. We do not believe his version that he left the house at all that night and that on his return to pick forgotten items he had then stumbled on a lover who engaged him in battle.

His added motive, which he presented only at the trial, being that he acted in self-defence against an assault by his wife and her lover, was clearly an afterthought.

It was far from being clear how the lover was said to have gotten out of the house that night since the house was locked from inside. The accused did not mention re-bolting the door at any point – something he forgot to do because he was making up his version as the trial unfolded.

The only person armed that night was the accused.

His explanation that he omitted to mention the fact of the lover in his warned and cautioned statement because he was afraid to contradict what the police had told him to say, is simply unbelievable.

There was no allegation from him that the confirmation procedure had not been properly followed. In fact, he admitted that when his statement was confirmed he was asked whether he was making the statement freely and voluntarily and that he told the court that it indeed was a freely made statement.

His defence that his wife was also squeezing his testicles is equally unconvincing.

His hands were free enough to get hold of an axe and then a metal bar and he could just as easily have used them to loosen her grip.

In any event, this version of events was again made up as the trial unfolded.

In his warned statement he had claimed that she had held him by the throat. We are in agreement with the State that the defence of self-defence, as a whole, is merely calculated to send the court on a wild goose chase. He was clearly in charge that night blaming his wife as a vector of disease and seemingly oblivious to the contradictions in his own statements that he was chaste.

How else did he discover his purported inability to sleep with women unless he had tried to sleep with droves of them?

By shifting blame, he merely hoped to get away from the consequences of his actions. It is easy for the accused to spin a version of events designed to ensure that the deceased was at fault for what happened to her; yet, as courts know only too well, there are always two sides to a story.

The accused's narrative about what happened that night was, from the onset, an incomplete one as the victim was dead. It was therefore a narrative told only by the accused as regards the causes behind the fight that day. This story, that he found her with a man, appears to be simply a continuation of his assault and vilification of her - even in her grave. As if mutilating her body was not enough, the accused simply resorted to mutilating her honour from a conviction, most likely from months of prison-talk among inmates, that an explanation that he acted in self-defence would exonerate him.

The defence of self defence against an attack by a phantom boyfriend is a fantasy of his imagination and cannot succeed.

His defence of intoxication was also not raised in his warned and cautioned statement and neither did it emerge in his Defence Outline. It was equally also an afterthought.

If he had indeed left home, and, on his way to where he was staying had stopped by to purchase some alcohol, this would have been a fairly straight forward piece of evidence to have corroborated.

But, even assuming that he had drunk any liquor on that day, there was no evidence led to convince this court that he did not have the requisite state of mind when he committed the offence. The onus is on the accused to demonstrate that his intoxication rendered him incapable of forming the requisite intention to murder.

The act of provocation which he alluded to in his detailed warned and cautioned statement was his wife's refusal to go for treatment for the sexually transmitted disease.

He could have gone himself for treatment so this was clearly no reason to kill. Sexually transmitted diseases are a common occurrence and people generally do not go killing each other.

What emerged from his son's evidence, and what is crucial to understanding the accused's action, is that he had a history of perpetrating domestic violence. This reflects his choice of dispute resolution as something he was accustomed to. The evidence led spoke to various forms of abusive behaviour that characterised the home life of the accused's relationship with the deceased.

An increasing number of cases brought before the courts reveal that far too frequently the bedroom has become a deadly environment for women as a result of men's violent outbursts in the resolution of disputes. Women have been clobbered, booted, strangled, stabbed, or slashed to death by their spouse in the confines of the bedroom, all the while by men who would have the courts believe that but for their wife's sluttish conduct, their behaviour was out of the ordinary.

See cases such as S v Madalitso Ranchi HH515-17; S v Karadzangare HH794-16; S v Ndachengedzwa HH45-16.

These cases reveal the depth of a societal problem of violence where violence in the home has become an all too frequent killer. As often happens where there is a cycle of domestic violence, situations rarely get better - but get worse. This time, as the facts show, the accused had erupted into a deadly rage.

In this instance, the accused's intention was manifest given that there was an attempt by his sons to get help. A neighbour came and was chased away with a metal bar. This evidence was not challenged when the neighbour gave his evidence about what had occurred that night when he got to the scene.

If the accused had not intended to kill his wife, he would not have resisted attempts to stop him. Instead, he had chased the witnesses away and threatened those who came to assist with a metal object.

The savagery of his furious attack is significant in that it is captured in his own words in his warned and cautioned statement. He had hacked her to death, repeatedly without count, and most probably even after he had inflicted enough blows to kill her given his own description of the various instruments he had used that were within his reach. He had also aimed them at the head, a very delicate part of the human body. His statement that he had aimed at the shoulders is simply a lie and even that would have been deadly in itself. He had meted out many blows showing his determination and perseverance to ensure that he inflicted maximum damage. He said himself he had never seen so much blood.

The court is satisfied that he had every intention to kill.

Suffice to mention that this case is not just about the murder of the spouse in a vacuum. It is about an intimate murder in the context of gender-based violence against women as much as it is a heart wrenching case of how such violence in the home impacts families, especially children, when left unchecked.

The children were exposed to gender based violence, and, ultimately, their mother's death as result of violence in the home.

No key players should ever take such violence lightly on account on it being “domestic” - be it community members or State actors encompassing the police, the prosecutors or the court itself.

The core obligations of State parties, in particular under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), are well articulated. They are to respect, protect and fulfil women's rights to non-discrimination and the enjoyment of de jure and de facto equality.

One wonders if the outcome of events that day would have been different if the police had reacted differently to their protective duty when she made her report earlier that day instead of simply telling her to return on Monday.

Such attitudes of procrastination, whether influenced by tradition, culture, or religion or economic constraints reflect a poor implementation of domestic violence legislation contrary to recommendations and the guidelines to State parties that have implemented the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). Inaction further contributes to a violation of a litany of rights that are crucial for women to enjoy a life free from gender based violence. As observed in paragraph 15 of General Recommendation No.35 on Gender-Based Violence against Women, updating General Recommendation No.19:

“Women's right to a life free from gender-based violence is indivisible from and interdependent with other human rights, including the right to life, health, liberty and security of the person, the right to equality and equal protection within the family, freedom from torture, cruel, inhumane or degrading treatment, freedom of expression, movement, participation, assembly and association.”

See section 48 of our Constitution, Constitution of Zimbabwe Amendment (No.20) 2013, on the right to life; section 49 on the right to liberty; section 51 on the right to human dignity; section 52 on the right to personal security; section 53 on freedom from torture; section 56 on equality and non-discrimination; and section 58 on freedom of association and assembly.

One wonders, too, if more members of the community had come out that night, especially men, if that could have made a difference.

The accused did not care about the impact of his actions. He had not been deterred at all in his brutal attack by the presence of four of his children in the house that day. They are the ones who have been tragically left to deal with the aftermath of violence in the home when all around seemingly took a softly, softly, approach to it. Those children, who were in the house, and those who returned to their mother's bloodied body with her 2 and a half year old next to her, will forever have to live with these haunting memories of the loss of their mother at the hands of their father. The five year old, who had to witness all this in the room that day, can only be but a broken child.

These are not memories a father should be bestowing on his children.

Experts tell us that the psychological scars will be with them forever, not just from the severity of the final act against their mother, but from having lived a life of exposure to domestic violence and years of witnessing brutality.

“Trauma caused by witnessing abuse between parents can manifest itself in the child through a number of symptoms. These symptoms range from withdrawal and inattention to suicidal tendencies. The problems that a child develops from witnessing abuse will often plague the child for the rest of her life. Yet, most courts refuse to classify the trauma or the enduring symptoms as child abuse. To protect these children, courts should change their view and consider the specific effects that witnessing abuse has on a child.”

And further:

“The child begins to associate violence with dispute resolution. Every time the child witnesses a violent episode, it reinforces the child's belief that violence solves disagreements. Children who grow up witnessing spousal abuse have a greater chance of becoming an abuser than children from non-violent homes.”

See DEREK J. TIMM, Mommy, Daddy, Please Stop Fighting: A Legal Analysis of How Witnessing Spousal Abuse Harms a Child, 2 U.C. Davis J. Juv. L. & Pol'y 29 (1997).

In support of counselling for such children see also, LAUREL A. KENT, Addressing the Impact of Domestic Violence on Children: Alternatives to Laws Criminalizing the Commission of Domestic Violence in the Presence of a Child, 2001 Wis. L. Rev. 1337 (2001).

These children will no doubt require counselling to help them deal with their traumatic experiences. This is particularly so with the two older boys who went to seek help who will need assistance so that they do not live thinking that they could have prevented their mother's death.

For the eldest son, having had to re-live the experiences of that day, through testifying in court, will no doubt have re-traumatised him.

Constitutionally, children are entitled to adequate protection by the courts, and, in particular, the High Court as their upper guardian. See section 81(3) of the Constitution.

As such, and as part of that mandate to protect, this matter is therefore brought to the attention of the Director of Social Welfare to render the necessary psychological and other assistance to the children who are now staying in Wedza, Musengezi, Chaza Village with their grandmother in the event that none has been rendered.

Verdict: The accused is found guilty of murder with actual intent in terms of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code)....,.

Section 47(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) provides that in arriving at an appropriate sentence for murder, it shall be taken as an aggravating circumstance if:

“The murder was preceded or accompanied by physical torture or mutilation inflicted by the accused on the victim.”

That gender based violence may amount to torture or cruel, inhuman or degrading treatment in circumstances of domestic violence is clearly addressed in paragraph 16 of the General Recommendations on Gender-Based Violence against Women to State Parties that I have alluded to…,.

Moreover, our own Constitution, in section 53, guarantees freedom from torture or cruel and degrading treatment or punishment from State actors as well as private individuals. This no doubt includes freedom from torture resulting from gender based violence since official torture and gender based torture, though each unique in its egregiousness, as has been argued (see RHONDA COPELON, Intimate Terror: Understanding Domestic Violence as Torture in R COOK (ed) Human Rights of Women: National and International Perspectives (Philadelphia University of Pennsylvania Press) 1994), are ultimately said to share commonalities in terms of process, purpose, and consequences.

Factually, there is no doubt that the deceased was subjected to cruel, unusual and degrading treatment. The fact that she was heard to be asking for forgiveness was simply an indication that she could bear the pain no more. She would have said anything to stop the physical torture as she was being hacked and mutilated.

Indeed, as the State rightly pointed out as aggravating, she died an extremely painful death.

Throughout the trial, the accused showed absolutely no remorse for his actions. A lengthy custodial sentence is called for to enable him to reflect on the impact of his actions for which at present he shows absolutely no remorse.

Accordingly, the accused is sentenced to 35 years imprisonment.

HH45-16 : THE STATE vs PHILLIP NDACHENGEDZWA
Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHIPERE

The circumstances surrounding the allegations of murder are as follows;

The accused and the deceased were, at the relevant time, customary law husband and wife. They resided in premises behind Munashe Store, managed by one Loveness Beta (“Loveness”) at Ndiyadzo Business Centre, Chipinge. Prior to the date on which the events subject of the allegations occurred, the deceased had been away for about a month. So when the altercation leading to her death occurred, she had only recently returned. Their relationship was under severe strain as a result of mutual allegations of infidelity. Around 10:00h, the couple engaged in an altercation which attracted Loveness Beta, their landlord. The deceased cried out for help and Loveness Beta came to her aid. She found that the deceased had already been badly injured. It appeared that she had been stabbed by the accused who wielded a spear. The deceased was rushed to Ngorima Clinic and later transferred to Mutare General Hospital where she subsequently died.

In denying the charge, the accused stated, in his Defence Outline, that their four year marriage had been shaken by various acts of infidelity on the deceased's part. Despite efforts to talk these over, the infidelity streak in his customary law wife continued to haunt their marriage. What had led to this latest altercation was the following. By September 2014, they had, as a couple, saved $4,000= with which they intended to build a home. He had, that month, travelled to Beitbridge on business. When he called his wife on her mobile number, she had told him that she had left their home and proceeded to her maiden home. Upon further enquiry with his wife's relatives, he learnt that, in fact, she was in Chiredzi where she was spending time with another man.

By the time he returned home, on 22 October 2014, the deceased was still not at home although she had undertaken to be home. She only returned home on the eve of 24 October 2014. By that date, he had information that the deceased was planning to build a home with another man. He therefore asked about their US$4,000= savings. She avoided the subject and prevaricated on the issue raising his suspicions higher. The next morning he asked her, again, about their savings but she rebuffed him. When he got the chance, he searched her handbag for the money. He came across concrete evidence of infidelity in the form a love letter and a photograph of a man. Before he confronted her with this evidence, he decided to seek the wise counsel of their landlord, Loveness Beta. Her advice was that it was in the interest of both of them if they separated amicably. He left Loveness Beta and went back to the deceased whom he confronted with the evidence of her infidelity. Upon being confronted, the accused says that the deceased then asked him why he had searched her bag and berated him for it. She, however, admitted having used the money to buy another piece of land.

This angered him.

He advised her that their marriage was over and that she should give him back his money and leave. He began to pack her clothes into a bag. At that point, the deceased picked up his spear and attempted to attack him. He grabbed the deceased's hand and elbow to wrestle the spear from her in an attempt to avert the attack. They struggled for the possession of the spear. In that struggle, she bit him on the hand. They both fell to the floor. In the process, he says, the deceased was accidentally stabbed. As a direct result of this accidental stabbing, when she fell onto the spear, the accused says she released her hold on the spear. He remained holding it. She, however, thereafter, went on to grab him by his private parts and pulled them. In a bid to cause her to free this grip, he then stabbed her on the arms. She relented and loosened her grip on him. The spear was now on the floor. He grabbed it to prevent her from picking it up and using it on him. He maintained that he had no intention to kill her as she was accidentally stabbed. He also maintained that he did not realise that there was a real risk that in the process of defending himself from an unlawful attack, the deceased might be fatally injured.

The evidence led from the medical doctor, Dr Matimbura, was that on 24 October 2014 she attended to a patient who had presented at a local clinic with serious injuries. She was visiting from Mutambara Mission Hospital. Upon enquiry, the doctor learnt that the patient had been stabbed by her husband. The patient bore several stab wounds and exhibited signs of severe blood loss. The doctor described the injuries as follows;

(i) She had laceration on the right forearm extending to wrist, inside the right palm and right forearm near the wrist; left upper arm, and the shoulder.

(ii) She noticed a deep penetrating wound to the abdomen through which faecal matter was drawing. This latter wound implied that the intestines had been perforated. In her view, it required severe force by a sharp object to puncture the skin as well as the stomach wall into the intestines. Draining of faecal matter into the blood stream indicated that simultaneous and rapid poisoning of the patient's blood was taking place.

The patient required a higher level of care than that which the clinic could give. She referred the deceased to Mutambara Mission Hospital for the appropriate level of care.

In her view, from her experience as a medical doctor, and going by the number of lacerations, it was highly unlikely that the injuries on the patient were sustained accidentally. In any event, when she asked the patient how she had sustained the injuries, the patient had indicated to her, as doctor, that her husband had stabbed her with a spear. At Mutambara Mission Hospital, the patient was operated upon. Unfortunately, the patient died. The post mortem report by Dr Makange, in Exhibit 6, confirmed the oral description of the injuries given by Dr Matimbura.

Crucially, the evidence led from Loveness Beta establish that on the day following the deceased's arrival the accused had approached her with a letter which tended to confirm the accused's claims of infidelity by his wife. She had advised him that a cordial separation was the best in the circumstances. The accused conceded that his wife had previously strenuously denied any allegations of infidelity. He now held, in his own hands, hard evidence of that infidelity. This had angered him beyond measure by his own admission.

In our view, these factors provide sufficient motive for the accused rather than the deceased to have been the aggressive of the two. Put differently, it is in our view, the accused who had reason to be on the offensive rather than the deceased as the accused would have us believe. In any event, the argument over the money only provides further reason for the accused to be angry with her. This court therefore finds that the State witness, Loveness Beta's, evidence is more reliable on the factual situation obtaining inside their room than the version given by the accused. This is particularly made more cogent by Loveness Beta's version as to how the accused took her advice. According to her, after she advised him to cordially separate from the deceased - the accused indicated that he would resolve the issue his own way. A few minutes later, Loveness heard the deceased shout for help.

Loveness Beta had no idea of what she was to witness shortly thereafter. She went on to say that she heard the deceased scream and shout that that she was dying. She ran to the couple's quarters and upon arrival at the couple's quarters, she saw the accused stabbing the deceased on the left shoulder with a spear. The deceased was by then bleeding from wounds inflicted earlier on. She shouted at him to stop. The deceased was in a bending position holding her right lower abdomen. She had pulled the accused outside their room. The deceased followed outside the room. When the three were outside, the accused attempted to stab the deceased again. She pushed him away. She arranged for the injured wife's evacuation to nearby Ngorima Clinic.

We have assessed the credibility of the witnesses led by the State and are satisfied by the veracity of their versions. We are satisfied that they were truthful and their versions accord with the probabilities in the matter. We find it highly unlikely that the deceased suffered multiple wounds in the manner the accused described. His version is so improbable that we are satisfied that it is false beyond doubt.

In our finding, upon a fair consideration of the facts of this matter, the accused was on this day provoked by the continued infidelity of his wife, which had been confirmed by hard evidence, as well as her decision not to share the US$4,000= which he said they had saved for the construction of their own home. In the heat of the moment, he had attacked her by stabbing her with the spear on the abdomen. This would have led the deceased to scream for help. When he pulled out the spear, she must have defensively tried to hold the spear hence the injury to her palm and wrist. He was found by Loveness Beta delivering the left shoulder stab wound. He attempted to stab her even after Loveness's intervention.

The question which arises is whether, in those circumstances, the accused can be said to have lost self-control and acted in the heat of passion in stabbing her. In other words, can a defence of lack of intention to kill be upheld on the facts? Can this court uphold his partial defence of provocation to the charge of murder?

Generally, provocation is not a defence to a crime. In certain circumstances, however, the law recognises that situations may arise in which a person is virtually pushed to act in a manner constituting a crime because the amount of provocation he would have been subjected to literally prevents him from exercising control over his faculties. In other words, in order to provide or act as a partial defence, the provocation would have resulted in the accused losing self-control. Short of that it constitutes no defence.

Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] codifies the common law position thus:-

“239 When provocation a partial defence to murder

(1) 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 may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation -

(a) He or she does not have the intention or realisation referred to in section forty-seven; or

(b) He or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

[Subsection amended by section 31 of Act 9 of 2006.]

(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that -

(a) He or she did have the intention or realisation referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;

The accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

In S v Nangani 1982 (1) ZLR 150 (SC), the court confirmed the common law position that provocation can, in appropriate circumstances, have the effect of excusing or reducing an intentional killing at least to the point of reducing murder to culpable homicide - even where the killing is intentional. The court, however, pointed out that in order to meet this threshold, the provocation must be such as to have actually caused the accused to have lost self-control, though not necessarily his capacity to intent to kill. It added that it must also be such that in the circumstances, an ordinary man would have lost his self-control and acted in the manner the accused did.

See also R v Bureke 1960 (1) 49 (FC); S v Turk 1979 (4) SA 621 (ZR).

Counsel for the accused relied on S v Nyangani 1982 (1) ZLR 150 (SC) in urging us to find that there was sufficient provocation to reduce the charge of murder to culpable homicide. It seems to me that her argument ignored the fact that the accused did not dispute the evidence given by Loveness Beta that after finding the letter inside his wife's handbag, the accused had sought her advice as how he should handle the situation he found himself in. In our view, he had the opportunity to reflect on the possible courses of action that were open to him. He had, so to speak, an opportunity to reflect on his action and reaction. He opted to ignore the sound, sensible and sober advice from his landlord and practically took matters into his own hands - as he said to the landlord.

In our view, a reasonable man in his position, having walked out to seek advice, and such advice having been rendered, would not have acted in the manner that he did. He would have heeded the landlord's advice and not settle on resorting to the use of a spear on the cheating wife. He expressed his wish to resolve the matter his own way. He was, at that stage, not armed with a weapon of any description, let alone a spear. The act of arming himself was a deliberate one, borne out of the desire to punish the wife for her so many transgressions which included infidelity. If he did not intend to kill her when he stabbed her in the abdomen he certainly realised the obvious risk associated with the puncturing of the abdominal area using such a weapon as a spear.

In our view, the accused cannot escape conviction for murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

He is therefore found guilty as charged.

HH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

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

It was alleged against the accused that, on 24 December 2015, at Muringamombe Primary School, Shamva, he unlawfully assaulted Meggie Mariko with open hands, pushed her against the wall, and strangled her resulting in her death.

When the charge was put to the accused and the court thereafter asked him whether he understood it, he responded as follows;

“Yes, but it was not my intention to kill her.”

The court entered a plea of not guilty.

Counsel for the accused tendered, on behalf of the accused, a guilty plea to the lesser offence of culpable homicide which is also a competent verdict on a charge of murder. Counsel for the State accepted the tendered plea of guilty to culpable homicide.

Both counsel advised the court that they had crafted a Statement of Agreed Facts which they tendered to the court. The Statement of Agreed Facts was read into the record and accepted as Annexure A.

The court sought, and received, confirmation from counsel for the accused that she had explained the elements of the charge and the agreed facts to the accused and his agreement with the same.

The court formally convicted the accused of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In addition to the Statement of Agreed Facts, the State also produced, with the consent of the accused person, given through his counsel, the autopsy or post-mortem report compiled by the doctor after examining the remains of the deceased.

The post mortem report was produced in terms of section 278(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The report, which the court accepted in evidence as exhibit, 1 was prepared by Doctor T Jabangwe following his examination of the remains of the deceased on 20 February 2016 at Parirenyatwa Hospital. The request for examination was made by Zimbabwe Republic Police officers from Shamva Police Station and the deceased's family members who identified the remains of the deceased. The doctor is employed as Registrar, Pathology. The highlights of the doctor's report are that:

(i) The deceased's body was wrapped in three (3) layers of sheets tied with a rope 3x1cm in thickness.

(ii) The body parts were in various degrees of decomposition with maggots coming out of the body and also moving round the sheets.

(iii) The elbow bone was exposed with the skin eaten up by maggots.

(iv) The skull bones were exposed and there was no bleeding from the skull.

(v) The cause of death was indeterminate because of the advanced state of decomposition of the remains.

The material facts of the case which arise from the Statement of Agreed Facts can be summarized as follows:

1. The accused and the deceased were of about the same age (32 years). The accused was unemployed whilst the deceased was a student teacher at Maringamombe Primary School, Shamva. The two stayed together at the school and were husband and wife with the latter being heavy with child and in her eighth month of pregnancy.

2. On 24 December 2015, the couple had a domestic altercation which started around 5:00pm and continued during the night extending into the morning of the following day. What triggered the dispute was not quite disclosed to the court even when it put questions to the accused during mitigation and aggravation.

3. Albeit the trigger of the domestic quarrel not having quite been established, it was accepted, in the agreed facts, that, in the course of arguments between the couple, the deceased accused the accused of being infertile. The accusation infuriated the accused who all along held the belief that he was responsible for the deceased's pregnancy and was looking forward to fatherhood of his first child.

4. Following the verbal exchanges, the accused decided to take leave of the house and the deceased and started to pack his clothes. The deceased then ordered him not to remove any clothing from the house since the clothes had been bought by her as the accused was unemployed.

5. In a fit of anger, the accused then turned physical on the deceased. He assaulted the deceased with open hands and threw her against the wall. When she hit against the wall, the deceased fell down. When she had fallen down the accused throttled her on the neck until she was still. He then left her lying on the mattress.

6. The accused proceeded to the local business centre and spent the day drinking alcohol. He returned to the couple's house at night and discovered that the deceased had died. The accused wrapped the deceased's body in sheets and secured the wrapping using a rope. He carried the deceased's body out of the house and buried it in shallow grave which he dug some 80–100 metres away from the house.

7. The body of the deceased was discovered by another person on 18 January 2016. Investigations were then carried out and they culminated in the arrest of the accused on 19 January 2016.

It was on the basis of the summarized facts above that the plea bargaining between the State and defence counsels and the grounding of a plea of guilty of culpable homicide was based and the court recorded and accepted the facts as such....,.

Asked to shed light on what triggered the altercation between him and the deceased, the accused stated that the two had been scheduled to spend Christmas day at his in-laws place by invitation of the in laws. The deceased woke up very early, whilst it was still dark, and wanted to start off for her parents' home. The accused tried to persuade her to wait until it was light but the deceased insisted on leaving. This argument then degenerated into further arguments during which the accusations of infertility of the accused were made as well as the allegation that the pregnancy which the deceased was carrying was not fathered by the accused....,.

The sad facts of this case present yet another addition to the endless list of homicide cases arising from domestic violence. Such cases are becoming frequent in this court.

On 26 February 2007, the legislature gazetted the Domestic Violence Act [Chapter 5:16]. The rationale for enacting the said Act was to protect and also afford relief to victims of domestic violence following the upsurge in such cases.

In this court's view, legislation and the courts, alone, cannot stop or tame the tide of domestic violence. Domestic violence consists in a behavioral pattern of assertive or coercive behaviors that intimate adults employ against each other as a show of power and/or authority in a relationship. This is done through physical, sexual, emotional, and economic abuse among other manifestations.

It is this courts view that our society must strive towards achieving a zero tolerance for domestic violence. To achieve this goal, communities and institutions across the divide should preach against domestic violence. There should be respect for our cultural values. Spiritual and community support is invaluable as is promotion of counselling and mediation as instruments of dispute resolution. One can end up writing a treatise on domestic violence as it is a topical and varied topic. The bottom line is, in the view of this court, respect for one another and keeping emotions in check.

The death of the deceased, and the unborn eight (8) months foetus, was tragic in this case and quite unnecessary.

The nature of the quarrel between the accused and the deceased, though touchy, did not call for the use of violence on the part of the accused. The deceased's verbal outburst, that the accused was infertile, cannot have been a whole-hearted accusation given that the parties were married and had been staying together for a long while. The parties had married officially in October 2014. An accusation that the accused was infertile must have been uttered to simply hurt his ego because it would have been tantamount to confessing that the deceased had an extra marital relationship.

Such a confession is not easily made by any sane woman who is married.

The deceased also further hurt the accused's ego by demanding that he should not take away any items of clothing because he did not buy the clothes as he was unemployed....,.

The accused's use of force was not only uncalled for. It was not measured because he even threw the deceased against the wall. As if this was not enough, he went on to throttle the deceased. Throttling a person causes such person not to breathe. The deceased, after being throttled, became helpless and lost consciousness....,.

It is arguable that the deceased could well not have been convicted of murder as defined under section 47(1)(b) on the basis that he ought to have realised that by engaging in an assault upon the deceased in which he used his hands, threw the deceased against the wall, and proceeded to throttle her, that death could result from his conduct and proceeded in so acting.

The nature of the provocation which the accused alluded to as having made him assault the deceased was not, in the circumstances, such as should have made him lose his head. In fact, he only lost his head, it would appear, after the deceased had ordered him not to pack his clothes as he had not bought them. His reaction to the accusation of infertility was to decide to take leave of the house which was reasonable.

The court will however accept that the totality of the provocative acts or utterances by the deceased would have had a cumulative effect.

The circumstances of this case, nonetheless, remain borderline between murder and culpable homicide and the accused benefited from the doubt.

Section 48 of the Constitution prescribes that the right to life is a fundamental human right and such right is the first of several fundamental human rights listed in the section. Section 49 of Criminal Law (Codification and Reform) Act complements the importance attaching to the fundamental right to life by providing stiff sentences for culpable homicide. The sentence for culpable homicide ranges from imprisonment for life or any period and includes the imposition of a fine which is up to or exceeds level 14 or both a term of imprisonment and a fine. The offence is therefore viewed seriously by the legislature and it indeed is.

A lost life cannot be salvaged once lost. It is therefore important to respect the sanctity of human life....,.

The accused's conduct was deliberate. The deceased's death did not come about through the consequences of oversight or carelessness on the part of the accused. The deceased met her death in the course of the unlawful attack perpetrated upon her by the accused. The accused assaulted the deceased with open hands, threw her against the wall, and choked her. The deceased did not fight back.

As already indicated, there is an upsurge of cases of domestic violence resulting in death. The cases concern men as much as they concern women behaving violently. The courts, in such circumstances, should be seen to be passing deterrent sentences....,.

Considering the accused's degree of culpability, or level of negligence, which has been found to be gross, and taking into account all the circumstances of the case involving mitigating and aggravating circumstances, and societal interests, an appropriate sentence in this matter is as follows:

The accused is sentenced to 12 years imprisonment of which 4 years imprisonment is suspended for 5 years on condition that the accused is not within that period convicted of an offence involving the unlawful taking away of another person's life for which he is convicted and sentenced to imprisonment without the option of a fine.

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

The matter started off as a murder trial. At the close of the State case, the parties conferred and agreed that the accused persons' plea to culpable homicide be accepted.A Statement of Agreed Facts outlining common cause aspects was compiled and presented before the court. Having established the genuiness of ...

HH784-15 : THE STATE vs TAWONA MICHAEL MHUTE
Ruled By: BHUNU J and ASSESSORS: GONZO and SHENJE

This is an application for leave to appeal against sentence in terms of Rule 263.

The accused was convicted of culpable homicide after contest. He assaulted and killed his wife in a drunken brawl on the night of 4 October 2009. In consequence whereof he was sentenced as follows:

“1. The accused is accordingly sentenced to 7 years imprisonment of which 2 years imprisonment is suspended for a period of 5 years on condition the accused does not again within that period commit any offence involving the unlawful killing of a fellow human being.

2. In respect of the minor child, KUDZAIISHE MICHAEL MHUTE, it is ordered in the interim:

(a) That GRACIANO PARADZAI KAPFUNDE shall continue to have custody of the minor child KUDZAIISHE MICHAEL MHUTE pending a final order of a competent court of competent jurisdiction.

(b) That 50% or Half of the proceeds or rentals from a certain piece of property known as NUMBER 9 SORMERSET MEWS NEWLANDS HARARE jointly owned by the deceased and the accused shall be deposited into the GUARDIAN FUND pending the determination of a competent court of competent jurisdiction.

(c) That the Registrar is directed to serve a copy of this judgment on the Master of the High Court.”

In assessing sentence, the court was alive to the prevalence of offences involving domestic violence and the need to pass stiff and deterrent sentences in offences of this nature. Having regard to the applicant's moral turpitude, it is my considered opinion that imprisonment is unavoidable at all costs. The sentence passed is within the range for serious culpable homicide cases such as this one. It was tempered with mercy in that a substantial portion of the sentence was suspended on appropriate conditions of good behaviour.

The applicant's intended appeal is premised on the credibility of the post-mortem report. That criticism of the trial court does not take the applicant's case any further because the judgment makes it clear that there were two credible eye witnesses who saw the deceased shortly after the attack. It was common cause that the accused was the author of the wounds and injuries observed by the two State witnesses. The court's vision of the deceased's injuries to which she subsequently succumbed to death was perceived through the eyes of the two State witnesses with the post-mortem report simply providing a backup and confirmation of direct eyewitness evidence.

The assault was brutal and merciless causing the following injuries observed by two eyewitnesses:

1. A black eye.

2. Bruises on the face.

3. Bruises on the neck.

4. Swelling on the face.

The above injuries were confirmed by a medical report which also revealed that the deceased had sustained a fractured jaw. A narration of the injuries by the deceased's mother and sister paints a ghastly horrific picture depicting the ferocity of the barbaric, savage attack. Thus, even if the medical report was to be expunched from the record, the result will remain the same.

The applicant's argument that the deceased suffered from a condition called sickle cell trait is more of an aggravating feature than a mitigating circumstance considering that the applicant perpetrated a brutal fatal attack on his wife with the full knowledge that she was of ill-health.

The well-known thin skull rule is applicable. You take your victim as you find him. Both ill and healthy people have an equal right to life.

Come to think about it, the applicant was lucky to come out with the lesser charge of culpable homicide. Since he knew of his wife's ailment he must have subjectively foreseen that death would ensure in the circumstances of this case, thereby rendering him liable to guilty of murder with constructive intent.

In assessing sentence, the court took into account all the mitigating factors and balanced them against the interests of the State and society at large. The court also went out of its way to achieve social justice by making provision for the sustenance and upkeep of his immediate family, particularly his minor child with the deceased who has lost the love and care of both parents through death and imprisonment.

There being no discernible misdirection on the trial court's part, I am of the firm view that there are no reasonable prospects of success on appeal. That being the case, the application cannot succeed.

It is accordingly ordered that the application for leave to appeal to the Supreme Court be and is hereby dismissed.

HB267-16 : NJABULO NDLOVU vs THE STATE
Ruled By: MATHONSI J

The applicant is a 36 year old school teacher at Gwanda High School. He was caught red-handed by his wife while in a compromising position with another woman at the family A1 Stand in Matshetsheni, Gwanda on 5 June 2016.

When he left his wife at their residence, at Gwanda High School, he had claimed to be going to town when in fact he was going on a tryst with a girlfriend. Upon being accosted by his wife, Semziwe Mafu, there was an altercation as the applicant shielded his girlfriend by locking her in the house. He then pushed his wife sending her reeling to the ground where she fell on a stone and sustained injuries. He is said to have also assaulted the complainant although he denied it initially.

Whatever the case, he took advantage of the incapacitation of the complainant to take his girlfriend in a motor vehicle before driving off.

The applicant was charged with physical abuse in contravention of section 3(1)(a) as read with section 4 of the Domestic Violence Act [Chapter 5:16].

When he appeared before a magistrate at Gwanda he pleaded guilty.

Upon conviction, he was sentenced, on 15 September 2016, to 24 months imprisonment of which 4 months imprisonment was suspended for 5 years on condition of future good behaviour, despite the fact that he is a first offender who pleaded guilty, a family man, and the sole breadwinner for his wife and two minor children.

He was so sentenced even though he had apologized profusely to his wife and even paid compensation in the form of a beast for his indiscretions.

He was also footing her medical bills.

The applicant has appealed against both conviction (despite the guilty plea) and sentence.

The appeal against sentence is grounded, inter alia, on the fact that the trial court did not bother to consider community service even though he qualified for community service.

He now approaches this court seeking his admission to bail pending appeal.

In pleading his case, the applicant has stated that, as a family person and a teacher who was on bail pending trial and sentence, he is unlikely to abscond. This is particularly so considering that his appeal has good prospects of success. In light of the now well documented bottlenecks and delays in appeal procedure, he may serve the entire sentence or a good part of it before the appeal is heard which will be prejudicial to him should the appeal succeed.

The application is strongly opposed by the State on essentially two grounds, namely;

(i) That there are no prospects of success on appeal; and

(ii) That the applicant is likely to abscond.

While I agree that the appeal against conviction enjoys no prospects of success given the guilty plea, I do not agree that the sentence may not be interfered with.

I must add that, to his credit, counsel for the applicant abandoned the appeal against conviction.

The concern of the court, in a bail application of this nature, is to ensure that the due administration of justice will not be prejudiced. If a real possibility exists that the administration of justice would be prejudiced by the admission of the applicant to bail, bail should be denied.

Usually, there a risk to the administration of justice associated with a readiness to abscond where the chances of success of the appeal are dim. An applicant for bail who knows he is unlikely to succeed may be inspired to take flight in order to avoid serving a term of imprisonment.

In the present matter, the sentencer settled for an effective imprisonment term of 20 months against what was clearly a contrite first offender who had done everything to appease his wronged wife.

Having settled for such sentence, the sentencer was required, in terms of a series of authorities from this court which are binding on magistrates, but which they studiously ignore quite often, to consider the suitability of community service as a sentencing option. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Mabhena 1996 (1) ZLR 134 (H)…,; S v Chireyi and Others 2011 (1) ZLR 254 (H)…,.

If, following an inquiry into the suitability of community service, the sentencer forms an opinion that it is inappropriate, and that imprisonment is the proper sentence, he or she must record the inquiry and give proper reasons for that decision which must appear on the record. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Chinzenze and Others 1998 (1) ZLR 470 (H); S v Silume HB12-16.

No inquiry was carried out and reasons for rejecting community service are not apparent from the record.

Instead, the magistrate appears to have been emotional about the matter going on and on about the applicant not having been “remorseful” that as a teacher his behaviour “sends a bad message” to the community and that the injuries suffered by the complainant “are life threatening” - a finding not supported by the facts, and, indeed, the medical evidence.

In view of that, I am satisfied that there was a misdirection on sentence. The Appeal Court will therefore be at large to interfere with the sentence.

Therein lies the applicant's bright prospects of success on appeal. There is therefore merit in the application for bail pending appeal.

Accordingly, it is ordered that:

1. The applicant be and is hereby admitted to bail pending appeal on the following conditions; that

(a) He deposits a sum of US$100 with the Registrar of the High Court in Bulawayo.

(b) He resides at House Number L Gwanda High School until the appeal is finalized.

(c) He reports once every fortnight at ZRP Gwanda on Fridays between 0600 and 1800 hours.

HH12-12 : THE STATE vs TAWONA MICHAEL MHUTE
Ruled By: BHUNU J and ASSESSORS: GONZO and SHENJE

The accused is charged with the murder of his wife which allegedly occurred in the course of domestic violence on 3 October 2008. Dr N Gonzalez examined the deceased's remains on 9 October 2008 whereupon he compiled a post mortem report.

The doctor has since left the country and is unavailable to give evidence. The State, however, seeks to rely on and has tendered the postmortem report as evidence against the accused notwithstanding the unavailability of the doctor who compiled the report.

The defence has vigorously challenged the admissibility of the post-mortem report in the absence of its author.

Section 278 of the Criminal Procedure and Evidence Act provides for the admission of documents of this nature as follows:

“278 Admissibility of affidavits in certain circumstances

(1) In any criminal proceedings in which it is relevant to prove -

(a) Any fact ascertained by an examination or process requiring knowledge of or skill in bacteriology, chemistry, physics, microscopy, astronomy, mineralogy, anatomy, biology, haematology, histology, toxicology, physiology, ballistics, geography or the identification of finger-prints, palm-prints or footprints or any other knowledge or skill whatsoever;

(b) Any opinion relating to any fact ascertained by an examination or process referred to in paragraph (a); a document purporting to be an affidavit relating to any such examination or process and purporting to have been made by any person qualified to carry out such examination or process who in that affidavit states that such fact was ascertained by him or under his direction or supervision and that he arrived at such opinion, if any, stated therein shall, on its mere production in those proceedings by any person, but subject to subss (11) and (12), be prima facie proof of the fact and of any opinion so stated.

(2) In any criminal proceedings in which it is relevant to prove -

(a) Any fact ascertained by a medical practitioner in any examination carried out by him which is proper to the duties of a medical practitioner;

(b) That any treatment, including the performance of an operation, was administered by a medical practitioner;

(c) Any opinion of a medical practitioner referred to in paragraph (a) or (b) relating to any fact or treatment referred to in that paragraph;

a document purporting to be an affidavit relating to any such examination or treatment and purporting to have been made by a person who in that affidavit states that he is or was a medical practitioner and in the performance of his duties in that capacity he carried out such examination and ascertained such fact in such examination or administered such treatment, and, in either case, arrived at such opinion, if any, stated therein shall, on its mere production in those proceedings by any person, but subject to subss (11) and (12), be prima facie proof of the facts and of any opinion so stated.

(11) An affidavit referred to in this section shall not be admissible unless the prosecutor or the accused, as the case may be, has received three days' notice of its intended production or consents to its production.

(12) The court in which any affidavit referred to in this section is produced in evidence may, of its own motion or at the request of the prosecutor or of the accused, cause the person who made the affidavit or any other person whose evidence the court considers to be necessary to give oral evidence in the proceedings in question in relation to any statement contained in the affidavit or may cause written interrogatories to be submitted to such person for reply, and such interrogatories or any reply thereto purporting to be a reply from such person shall, on their mere production in those proceedings by any person, be admissible in evidence.

(13) Nothing in this section shall be construed as affecting any provision of any enactment under which any certificate or other document is made admissible in evidence, and this section shall be deemed to be additional to, and not in substitution of, any such provision.”

The import of the above section is to render any affidavit purporting to have been made by a medical practitioner in the course of his duties admissible upon its mere production by any person. The post mortem report intended to be produced by the State fits squarely within the family of documents admissible upon their mere production by any person in terms of section 278 of the Criminal Procedure and Evidence Act.

That being the case, I find that the objection is unsustainable.

It is accordingly ordered that the post-mortem report tendered by the State be and is hereby admitted in this case in terms of section 278(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

HMT19-19 : THE STATE vs LYDIA KAHWEMA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and CHIPERE

The accused was initially charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged, that, on 26 February 2018, and at Mangatu Village, Chief Marange, Mutare the accused unlawfully caused the death of Tafadzwa Kahwema by assaulting him several times all over the body and hitting his head against the wall intending to kill him or realising that there was a real risk or possibility that the conduct might cause death and continued to engage in that conduct despite the risk or possibility thereby causing severe head injuries from which the said Tafadzwa Kahwema died.

The accused pleaded not guilty to murder but admitted to having negligently caused the death of the deceased. The accused tendered a plea of guilty to culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State accepted the limited plea of guilty to culpable homicide.

A Statement of Agreed Facts summarised the circumstances of the matter as follows:

On 26 February 2018, the deceased, a 13 year old juvenile, was sent home from school for not having a ball point pen. This annoyed the accused person -, the mother of the deceased. The accused then assaulted the deceased with switches several times all over the body and further hit the deceased's head against the wall. The deceased sustained severe injuries from which he passed on.

The body of the deceased was ferried for post mortem examination.

Dr T. Javangwe conducted the examination and concluded that the cause of death was traumatic force, subcutaneous/intra-muscular secondary to blunt force and head injury: post-mortem, exhibit 1 refers.

Having been satisfied that the accused assaulted the deceased with switches several times all over the body, and, further, that, the accused hit the head of the deceased against the wall in circumstances where she ought to have foreseen that serious injuries or death could occur, liability squarely attached on the accused.

The accused further failed to act reasonably by failing to guard against the possibility of death given the excess of the corporal punishment imposed.

We concluded that the accused was negligent in assaulting the deceased in the manner that she did. We thus concluded the accused was guilty on her own plea of guilty to culpable homicide. The accused is accordingly found guilty of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentence

In passing sentence, we have considered all mitigatory and aggravatory factors submitted by counsel. We have also considered the circumstances of the matter and sentencing principles ably identified by counsel in cases: see S v Phiri HH116-15; S v Nsoro HH190-16.

The court, in passing sentence, has to seek to strike a balance between the offence and the offender while at the same time tempering justice with mercy in such a manner as not to make society lose confidence in the justice delivery system.

It is mitigatory that the accused pleaded guilty as a sign of regretting the offence.

A plea of guilty should be credited for what it is worth and the sentence to be imposed must reflect the reduction emanating from such plea of guilty sentence: see S v Makumbe HH39-13.

See also S v Fergas (1) ZLR 487…, where the Supreme Court had this to say:

“A plea of guilty must be recognised for what it is; a valuable tool for smooth administration of justice while not absolving, it will be rewarded.”

The accused has been convicted of a grave offence of culpable homicide.

The penalty provision reflects that a sentence of up to life imprisonment can be considered in appropriate cases. This is a clear indication that society and the legislature view the offence as serious.

Section 48(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 protects the fundamental right to life. This means that no one should take away another's God given right to life.

The courts have to weigh in and show that the sanctity of precious human life cannot be eroded by violent and irrational individuals. The court is duty bound to mark its abhorrence of domestic violence by passing appropriate sentences.

The degree of negligence in this case is very high.

The accused's conduct bordered on recklessness as she brutally and viciously assaulted her 13 year old child using switches and further busting the head against a wall.

The moral blameworthiness is high given the child looked up to the mother for protection and support.

The child had been sent away from school for a ball point pen and for him to be visited with such a vicious attack by the mother was unwarranted. The mother had a duty and obligation to maintain the child. The deceased lost his life at the hands of his mother.

This is one of the worst type of domestic violence on a vulnerable child by the parent.

The courts have to send the message, loud and clear, that, domestic violence of any nature will not be tolerated - but severely punished. A civilised community should uphold a homely atmosphere which is peaceful and readily available to resolve differences in a peaceful manner.

To severely and fatally assault a child for a pen is unacceptable and must be condemned.

The child was subjected to torture both at home and at school. The right to education was offended by being chased away from school.

Further, the child's rights were crushed by the mother who violently attacked the child instead of shoulder the duty of care and provision on herself.

The irresponsible and cruel conduct by the mother calls for a custodial sentence. The accused is sentenced as follows:

8 years' imprisonment of which 4 years' imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving use of violence on the person of another for which she is sentenced to imprisonment without the option of a fine.

HB17-15 : THE STATE vs MANDLENKOSI NCUBE
Ruled By: MOYO J

The accused person faces a charge of murder; it being alleged, that, on the night of 1 February 2014 and the morning of 2 February 2014, the accused person allegedly assaulted the now deceased, namely, Nobuhle Moyo, who was his customary law wife. The deceased died at Mpilo Hospital on the morning of 2 February 2014.

The State led viva voce evidence from Musa Zulu.

The evidence of the other witness was admitted into the court record in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These were Nhlalo Gumbo, Caroline Sibanda, Belina Msimanga, Decock Masuku, Arnold Nyamayarwo, and Doctor I. Jekenya.

The documents exhibits were the State summary marked exhibit 1, the Defence Outline marked exhibit 2, the confirmed warned and cautioned statement marked exhibit 3 and the post mortem marked 4.

The accused person gave evidence for the defence.

The facts of the matter are largely common cause: The accused person and his wife (the now deceased) were returning from a beer drink at Pumula Beer Garden at around 2100 hours when they had a misunderstanding. The accused started hitting the deceased, accusing her of having a relationship with a certain man. Nhlalo Gumbo and Luke Mpande, who were also travelling the same way, then restrained the accused person.

The accused dragged his wife, the deceased, and Nhlalo Gumbo was then hit by the accused with a stick when he tried to restrain the deceased. He then retaliated, hitting the accused with a fist on the face and the accused fell down.

Nhlalo Gumbo then proceeded to his room with the deceased, where they slept together and had sexual intercourse, once.

The accused person later woke up where he had fallen and went to report the assault at Pumula Police Station. He later went to look for the deceased carrying an axe and a knobkerrie and found her sleeping in Nhlalo Gumbo's bedroom.

He was incensed by this, and the accused struck Nhlalo Gumbo with an axe on the shoulder and the witness fled into the bush. Nhlalo Gumbo heard the deceased screaming saying the accused was killing her.

Musa Zulu heard screams, woke up to check, and found the accused holding a knobkerrie and an axe dragging the deceased; the deceased broke loose and ran towards a lit room but fell on the step. The accused followed the deceased and was about to strike her with an axe but the witness intervened and said he would rather hit her with the axe. She asked the accused person to hand over the axe and the knobkerrie to her which he did.

The witness then left the accused hitting the deceased with booted feet and dragging her out of the yard. She went to call the neighbourhood watch members.

She took about two (2) hours as the trip was long because these members did not stay at the same place so she had to go to one place after another. When she came back with the members of the neighbourhood watch, the accused was still beating the deceased but now they were outside the yard.

She did tell this from the screams and the sound of an assault.

They then restrained the accused from beating the deceased and carried her in a wheelbarrow to R. Sinyoka School where they would meet an ambulance. She saw, from the ambulance lights bear on the deceased, that she was injured on the head and the cheek.

The accused person, in his Defence Outline, states that he used clenched fists and booted fit; but, in his confirmed warned and cautioned statement, he says that he used open hands, a dry tree branch, and a fresh switch.

The post-mortem report gives a series of injuries numbered 1–8. The postmortem report further states, that, the pale body means she lost a lot of blood from the multiple wounds of the head (scalp and face) from the axing. The report further says the right thigh bruise and the right parietal and bilateral occupied wound could have been caused by the handle of the axe or any rod-like object.

This court has to make a determination on what was used to assault the deceased as it is the only issue upon which a finding should be made as there are varying facts on it.

Firstly, Nhlalo Gumbo, whose evidence was admitted, as contained in the State summary, says the accused brought the axe and the knobkerrie, meaning the accused's version that he only brought the knobkerrie and took the axe from the witness is not true.

The accused person brought the said weapons with him.

Secondly, it is significant that Nhlalo Gumbo also says when the accused arrived, he struck this witness with an axe on the shoulder; the witness fled and later heard the deceased screaming saying the accused was killing her.

Musa Zulu also says she found the accused carrying the knobkerrie and the axe and that when the accused was about to strike the deceased with the axe, the witness intervened and stated that he would rather hit her. She then took the weapons away from the accused.

The accused admits that he was very angry on the date in question because of the unbecoming conduct of Nhlalo Gumbo and the now deceased.

The post mortem report gives a series of injuries and amongst these injuries, which are mainly wounds, the Doctor also chronicles about four fractures. On the second mark of violence, there is an underlying hair line occipital fracture, on the 6th mark of violence there is a fracture of the left maxillary bone.

On the 7th mark of violence, there are fractures of the nasal bridge and nasal bridge fractures. On the 8th mark of violence, there is a fracture of the upper jaw.

The Doctor remarks that the multiple scalp and face wounds are from axing. In other words, the wounds are consistent with marks of an axe; consistent with any rod like object.

Now, this court's finding is that the axe was used on the deceased; on this, the court finds for the following reasons:

Nhlalo Gumbo saw the accused wielding an axe and he in fact struck Nhlalo Gumbo with it on the shoulder. Musa Zulu saw the accused about to strike the deceased with the axe and restrained him. The post-mortem report has found that the wounds on the scalp and the face are from the axing meaning that from the Doctor's view such wounds are consistent with the use of an axe. The Doctor also finds that a rod-like object was also used in causing the other wounds.

We accordingly find that the accused did use the axe on the deceased, and, in so doing, he acted wrongfully and unlawfully.

We then move on to determine what the accused person is guilty of.

The accused person, incensed by his wife's conduct, beat her for a period in excess of two (2) hours, using, firstly an axe, then booted feet, clenched fists, a dry tree branch, and a fresh switch.

We say in excess of two (2) hours because Musa Zulu was away for about two (2) hours while the accused beat the deceased until when she came back with the members of the neighbourhood watch - and the accused had actually started beating the deceased prior to Musa Zulu's intervention as she was awoken by the deceased's screams meaning that the beating started then.

It was also Musa Zulu's evidence, that, at the time they came back and intervened, the members of the neighbourhood watch tried to lift the deceased and noted that she could no longer stand up.

This shows the extent of the beating; she had been injured to the extent that she could no longer stand up.

We then look at the aspect of intention in murder cases.

In this regard, we refer to PROFESSOR G FELTOE's Guide to the Criminal in Law Zimbabwe, 2005 edition…, wherein he stated as follows in relation to actual intention:

“The accused person desires death; death is his aim and object.”

He further says “there will also be actual intention where death is not the aim and object, but accused continues to engage in an activity which he realises will almost certainly result in death.”

The accused person assaulted the deceased with an axe, booted feet, clenched fists, a log, and a fresh switch.

It is also important to note that the accused wore safety shoes on the day in question.

The continued assault of the nature the accused perpetrated on the deceased, for a period extending beyond two (2) hours, and the nature of the injuries chronicled in the postmortem report, injuries some of which were as long as 20cm and 1-15cm wide, as well as four (4) fractures can only lead us to the conclusion that, the accused person continued to engage in an activity which he realized would almost certainly result in death.

A person with the multiple wounds of the sizes given in the post mortem report, and the number of fractures stated therein would almost certainly die from then.

It was the State's submission that the accused person had legal intention in his actions and therefore should be found guilty of murder with actual intent.

This court does not accept these submissions for the aforestated reasons.

Neither does this court accept defence counsel's submissions that the accused has negligence in his actions.

The accused, by conduct, had the requisite intention as defined in the law texts and other various authors.

We accordingly find that, in fact, the accused person's conduct meets the second leg of the two-pronged test regarding what actual intention is.

We accordingly find the accused person guilty of murder with actual intent.

HB22-15 : THE STATE vs FREDDY SAVANHU
Ruled By: KAMOCHA J

The 31 year old accused was charged with murdering his 19 year old girlfriend on 16 November 2013.

It being alleged, that, on that day, he had a misunderstanding with her and struck her with a stone on the head close to the right ear intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

It was alleged, that, that took place around 0930 hours along a foot path near Torwood Cemetery, Redcliff, in the Midlands Province.

When the charge was read to the accused he told the court that he admitted it: but, when the court asked him if he intended to kill the deceased his reply was that he admitted causing the death of the deceased without the intention of killing her.

A plea of not guilty was accordingly entered on behalf of the accused and his defence counsel advised the court that the plea was in accordance with the instructions the accused had given him.

The matter proceeded to trial.

The State read and produced its outline as exhibit one which I do not intend to reproduce here. I, however, do reproduce infra the Defence Outline which was also read and produced as exhibit 2. It reads thus:

“The accused will plead not guilty to a charge of murder, but will tender a limited plea. He pleads guilty to culpable homicide.

The accused and the deceased were lovers.

On 16 November 2013, the accused visited the deceased. The deceased asked the accused to accompany her to the bush where she intended to relieve herself. When they were in the bush, it was then that the deceased advised the accused that she was pregnant and that the accused was responsible. The accused questioned the deceased how she was sure that it was his pregnancy when the deceased had another boyfriend who was known to the accused. The deceased insisted that she was going to go with the accused to his residence and stay with him as husband and wife.

The accused then walked away, leaving the deceased behind. The deceased followed him.

This angered the accused who slapped the deceased across her face once with the back of his hand and once again across the face with the inside of his hand. The deceased staggered and started walking away.

The accused, at that point, was consumed with anger, lost his composure, restraint, and proper thinking, involuntarily picked up a stone with two hands and struck the deceased once on the head, and she fell down and it is probably during the fall that she broke her leg.

After falling down, she started to bleed from the nose and the ears, breathing heavily, and having difficulties in breathing. The accused panicked and fled from the scene, and went to seek refuge in Chitungwiza, Harare, from where he was subsequently arrested by police.

The accused will say that he never had had any premeditated intention to strike, or attack, or harm the deceased. He acted on the spur of the moment. He acted out of anger and loss of self control.

Accused accepts the evidence of all State witnesses….,.

Wherefore, the accused prays that he be acquitted of the charge of murder and that his limited plea be accepted.”

The next exhibit was exhibit 3 - the accused's confirmed extra curial statement, which was a confession, read as follows:

“I have understood the caution. I admit to the charge being levelled against me that I assaulted Thandiwe Ndlovu with a stone once on the right side of her head which caused her death. When she fell down that is when I ran away.”

The fourth exhibit was a post mortem report compiled by the doctor who examined the remains of the deceased. The doctor concluded that the cause of death was;

(1) Subarchnoid haemorrhage;

(2) Blunt force trauma to the head;

(3) Homicide.

Exhibit 5 was the stone which the accused used to strike the deceased on the head.

It is a very heavy stone weighing 12,67kg. It cannot be picked up with one hand due to its shape and weight. It is still blood-stained.

The State then led viva voce evidence from Kelvin Mutangi.

His evidence was common cause and was not contested. He is the one who first saw the deceased shortly after she had been attacked and went to report to the police. When he returned with the police to where she lay groaning she had died.

The evidence of all the other witnesses listed in the State Outline was admitted as it appears in the State Outline in terms of section 314 of the Code.

The accused, in his Defence Outline, had already indicated that he accepted the evidence of all State witnesses.

It must be noted that the accused's Defence Outline amounted to a confession with minute details of what occurred.

It reveals that he was the aggressor right from the onset. He hit the deceased with the back of his hand and with an open hand. As the deceased started to stagger and walked away he picked up the stone, exhibit 5, with both hands and aimed a blow at her head. The deceased was unarmed and defenceless. She posed no danger to the accused.

The accused sought to suggest that he did not know what he was doing as he had been possessed by a certain evil spirit.

That does not need any serious consideration and is hereby rejected as it does not make sense.

Similarly, his suggestion that he was provoked by the fact that the deceased informed him that he had impregnated her is also devoid of any merit and must be rejected.

He admitted, that, as lovers, he and the deceased used to make love. A natural consequence of lovers indulging in making love is pregnancy.

His legal representative, correctly, in my view, advised the court that he did not support the accused's suggestions. He further conceded that he did not persist with the limited plea of culpable homicide and abandoned it.

He then agreed with the State counsel that the accused was, in the circumstances, guilty of murder dolus eventualis.

In the result, I am in agreement with the legal practitioners and find the accused guilty of murder with constructive intent.

Sentence

The accused's legal representative has said all that needed to be said on his behalf. That will be taken into account. In particular that the accused has been in custody for 1 year 3 months through no fault of his.

A look at the other side of the coin shows that a young life was unnecessarily lost. Her crime was the fact that she told the accused that she was pregnant and he was responsible. Her pregnancy was eight (8) weeks. The accused was the aggressor right through. He killed her because he did not want to shoulder the responsibility of bringing up the child. The accused is very irresponsible and must be adequately punished.

The court would have sentenced him to 21 years, but, due to the fact that he has been in custody for 1 year 3 months, through no fault of his, this court's sentence is 20 years imprisonment.

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.

The appellant was charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that on 23 October 2011, at House Number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011.

The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight.

He was convicted after a full trial and sentenced to 13 years imprisonment.

The State's case was based largely on circumstantial evidence.

The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife, Nyasha Tsopotsa (Tsopotsa), and Sekai Guramatunhu (Guramatunhu), also a police officer.

The evidence of Tawanda Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased's. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap.

During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased's room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased's room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased's body. The deceased said to the appellant words to the effect: “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital.

The witness was found to be an honest, impressive, and reliable witness in the assessment of the court a quo.

The second witness, Nyasha Tsopotsa's evidence was to the effect, that, as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother, I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon's father!” a reference to the witness husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased's doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill-treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased's room.

The witness was instructed, by her husband, to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased's bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left.

As with Tawanda Miti, the court a quo was impressed by the witness demeanour. It found that her evidence was largely corroborative of that of Tawanda Miti. The court a quo also noted that the witness evidence, that the deceased accused the appellant of persistent harassment, and further said that the appellant ought to have finished her off, was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness.

Sekai Guramatunhu was the State's third and last witness.

On the night in question, at around 2:00 or 3:00am she was at the police station when Tawanda Miti entered the charge office with the appellant. After Tawanda Miti made a report to her she went outside to where Tawanda Miti's vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant's utterance was because the deceased was in pain.

The defence applied for discharge at the end of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State consented to the application.

The court a quo had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a prima facie case that the appellant had to answer.

In its ruling, the court a quo stated, inter alia:

“In short, the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.”

The appellant's evidence was to the following affect:

The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011, he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated.

When asked what sort of conversation he had with her, he said:

“I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her….,. They are two of my brother's sons….,.

I then advised her, that, by going to the bars like what she was doing, these young men were actually seeing them (sic), and, as such, was causing a lot of embarrassment….,.

She was silent during the time that I was telling her that.

But, she suddenly got up and said that she was going to set herself alight….,.

During the time that she was making that utterance she was actually making the way to the stove that was located next to the bed….,. It was a pram (primus) stove that normally uses paraffin. I had eventually bought that paraffin stove for use during the time that there will be no electricity….,. She suddenly got up, grabbed the stove, and poured the paraffin on herself….,. She let go the stove and she quickly grabbed the matches.

It was during the time that I quickly grab (sic) (grabbed) her by both hands as I was afraid that she might strike the matches. I then kept a firm grip on the hand holding the matches in order that she will not be able to lit (sic) (light) the matches. I took the matches from her and placed it in my pocket….,.

I then asked her why she wanted to set herself on fire….,.

She did not respond and she went back and sat on the chair and I sat back on my chair.

I then asked her why she wanted to set herself on fire and that I was just reprimand(ing) her not that I no longer loved her….,.

She did not reply.

I then kept on telling her to desist from her behaviour and that I was going to continue maintaining her as I have (sic) been doing before. Thereafter, she first remained silent. I then started to contact her aunt and her sisters; unfortunately I failed to get through to them. I continued sitting down trying to cool her down whilst advising her to desist from her behaviour.

It was after some time had lapsed, whilst I was trying to contact her aunt and her young sister and I was failing to get through. So we sat for quite some time….,. I was afraid to leave as I thought that maybe she might do something.

It was after we had settled for quite some time that she might have noticed that I was dozing as it was during the night that she took advantage because I just suddenly heard the sound of a chair being moved. When I got up she had already stood up and rushed to get another box of matches that I had not noticed.”

The appellant was asked how much time had elapsed between the time that she poured paraffin on herself and the time when she rushed to get another box of matches. His response was: “I think about 30 minutes when I was talking to her.”

He proceeded to state as follows:

“When I heard the sound of the chair and I got up he (sic) (she) was already stood up (sic) and picked up the matches box (sic) and she then struck the matches.

I also assumed, that, because of the time that we had spent after she had poured paraffin on herself that maybe it might have vapoured off. She actually directed the flame of the match on the bottom but it failed to catch and she put it under her arm and she then caught the fire….,.

She then screamed whilst advancing towards me….,. She appeared she actually wanted to grab me by the neck, but she missed; then she grabbed me by one of my hand(s) on the upper arm. During the time, she was now on fire. She actually held me in an indication that she did not want to let me go (sic).

It was then that I also caught the fire such that I also suffered injuries.

I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tape (tap) so that I put out the fire. She left hold of me as we were by the door and she was now in front. When we got to the tap, I instructed her to kneel down; I opened the tap and there was now water that was being poured on her head (sic) and all the body.”…,.

It is opportune to briefly digress at this stage and take note that in his confirmed warned and cautioned statement the appellant did not make any mention of having dozed off. He said that after setting herself on fire the deceased embraced him and he opened the door whilst she was so embracing him. He stated, inter alia:

“She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding. Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches (sic) and struck a match stick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tape (sic) where she poured some water on her. (sic) I followed her to the tape, (sic) helped her to extinguish the fire. I then went into the house to extinguish (the) fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time.”

The appellant further stated, in his testimony before the court a quo, that, after putting out the fire, he rushed towards the veranda where Tawanda Miti gave him a bucket which had water in it and told him to put out a fire that was burning inside the deceased's room. Inside the room, he saw something that was burning on the floor. It appeared to be a skirt, and he poured water on it thereby putting out the fire. There was another fire burning at the spot where the deceased had poured paraffin on herself. After putting out the fire in the room he went outside, and, in his words, he found the deceased “telling Miti and others that I had actually poured paraffin on her and set her on fire. But, I actually denied that and advised that she had done that to herself. But, after I had advised her that I am not the one who had poured paraffin on her, she then kept silent on that aspect.”

The appellant was asked how many minutes elapsed between the time that he put out the fire on her at the tap and the time that he found her alleging to Tawanda Miti, and others, that he had set her on fire. His answer was: “I think the incident could have taken about five minutes.”

He stated that when she was making the allegation she was no longer on fire as he had doused it.

It was also the appellant's evidence, that, during the time that the deceased was on fire and was crying out, he could not make out what she was saying.

Under cross-examination, the appellant said that the deceased called out to Tawanda Miti after he had put out the fire that was burning her and as he was putting out the fire in her room. He said that the deceased only screamed out the words “oh mother, I am dying” after he had put out the fire on her.

He further said, that, the deceased was lying about everything that she was saying to Tawanda Miti and the others. He accepted that the deceased did ask him why he had not also burnt himself. He said that she was lying but he thought that it was no use arguing with her considering the state of her injuries at the time and his concern was to seek medical attention for her.

As to why he had not asked or caused the deceased to remove the clothes on which she had poured paraffin, his response was that he did not think of it and that he thought the clothes would dry up.

He also thought that the deceased made the utterances that she made against him in order to “fix” him because he had exposed her infidelity of being seen in bars with other men.

The court a quo convicted the appellant on the basis that the circumstantial evidence placed before it proved beyond reasonable doubt that he had committed the offence. It also found that the State witnesses were credible witnesses.

It concluded, that, the utterances made by the deceased constituted res gestae and were admissible against the appellant.

It was the court a quo's view that the issue was whether it was the appellant who had poured paraffin on the deceased and set her ablaze resulting in the injuries from which she died and that the absence of a post mortem report was not fatal to the State case. It concluded that it was the appellant who had poured paraffin on the deceased and set her ablaze.

The appellant raised the following five grounds of appeal against his conviction and one against sentence:

“1. The Court a quo erred in coming to the conclusion that the State had proved beyond any reasonable doubt the appellant doused Modester Chikaka 'the deceased' with the paraffin and set her alight in the absence of admissible evidence supporting that conclusion.

2. The Court a quo lost its path in concluding that the deceased died from the fire in the absence of a post-mortem report supporting that finding.

3. The trial court erred in mis-applying the doctrine of res gestae by admitting inadmissible hearsay evidence of the deceased in circumstances where the State had not satisfied the pre-requisites of such admissibility.

4. The Court a quo misapplied rules of circumstantial evidence and misdirected itself by making a finding that the appellant committed the actus reus of murder in the absence of any proved facts from which that inference could be drawn.

5. The Court a quo fell into error by summarily rejecting the appellant's defence as inherently improbable that it could not reasonably be said to be true in circumstances where the evidence before it supported such a defence.

AD SENTENCE

6. The Court a quo erred in imposing a disturbingly severe sentence in circumstances where the Court a quo had made (a) finding that appellant's mitigation was considerably weighty.”

ISSUE TO BE DETERMINED

The issue to be determined is whether or not the State proved the appellant's guilt beyond reasonable doubt.

Counsel for the appellant based his oral submissions before us on five points:

(i) The first, which he indicated was not covered in his heads of argument, was that the court a quo proceeded under circumstances of an irregularity; the irregularity being that the summary of the State case contained allegations on which no evidence was led by the State, that such irregularity was designed to undermine the appellant's defence and colour the court's mind and that both these aims were achieved.

(ii) From the other four points that he said were covered in his heads of argument, the second point was that, on the application of the proper legal test, it cannot be said that the defence put forward by the appellant in the court a quo was false, and, consequently, worthy of the rejection by the court.

(iii) The third point was that the cause of death was not established in the court a quo.

(iv) The fourth point was that the court a quo irregularly admitted inadmissible hearsay evidence and went on to found its judgment on such inadmissible evidence.

(v) The fifth and final point was that the requirements for a conviction based on circumstantial evidence were not met a quo.

With regard to the first point, the contention was that the State made damning but false allegations against the appellant on which no evidence was led. Specific reference was made to paragraphs 2, 3 and 4 of the Summary of the State case as reflected at p2 of the record of proceedings.

Counsel for the appellant particularly highlighted paragraph 3 which reads:

“The accused proceeded to take a paraffin stove which was in the room and poured the paraffin onto the deceased. He took a box of matches from his trousers pocket, lit one match stick and threw it on the deceased's body setting her alight.”

It is my view, that, if the court a quo convicted the appellant purely on the basis of what is stated in the State Summary, and not on the basis of the evidence that was placed before it, then it goes without saying that the conviction would be baseless and would not survive this appeal.

If, as alleged, the court's mind was 'coloured' and the appellant's defence 'undermined' by the averments in the State Summary, such should be discernible from a reading of the court's judgment as it would have no cogency on the basis of the evidence that was placed before it. In this regard, I also take it, that, by the use of the word 'coloured' the defence meant that the court a quo was unduly influenced, in a negative manner, to the prejudice of the appellant.

It is trite that an appeal to this Court is based on the record.

It is also trite that an Appellate Court will not interfere with the decision of a trial court or tribunal unless the trial court or tribunal fundamentally misdirected itself in arriving at its decision. It is trite that an Appellate Court will not lightly interfere with a trial court's factual findings.

It is common cause that the appellant's conviction was not based on direct evidence. There was only circumstantial evidence that was adduced before the court a quo....,.

It must not be overlooked that the onus on the respondent was to prove its case against the appellant beyond reasonable doubt.

Counsel for the appellant's second, fourth, and fifth points revolve around the issues of the application of the evidential rules relating to res gestae and to circumstantial evidence.

The circumstantial evidence is made up of different aspects of the events that took place as the incident unfolded. The deceased's utterances, the subject of the conflicting contentions regarding hearsay evidence, with particular reference to res gestae, form one of the weighty aspects, among others, that emerge from the evidence that was placed before the court a quo.

The admissibility of the evidence of those utterances has been hotly contested by the defence.

What clearly emerged from the evidence by the State witnesses, which evidence the trial court accepted, was that during the time that the deceased was on fire she called out: “oh mother, I am dying” and she also called out Tawanda Miti's name.

Soon after the fire that was consuming her had been doused, and as soon as she saw Tawanda Miti, who she had called out to, she told him (Tawanda Miti), and the others who had come out, that the appellant had poured paraffin on her and set her alight.

The defence's contention is that this was hearsay evidence of utterances that did not amount to a spontaneous exclamation of a statement at the time of the relevant event, which would, at common law, constitute res gestae.

The submission was made, that, the deceased had had ample time for cogitation in the five minutes that elapsed from the time that she was burning, attempting to put out the fire, running to the tap, and running back, and then making the allegation, such that whatever she said at that stage could not qualify as part of the res gestae.

The argument was that the spontaneity requirement was not met.

Counsel for the respondent, on the other hand, submitted that the court a quo decided that the deceased's utterances were res gestae because she had screamed out and footsteps were heard by the first and second witnesses and that immediately upon returning from the water tap she had accused the appellant of having doused her with paraffin and set her on fire.

He submitted that the court a quo cannot be faulted for its finding that the failure by the deceased to name the appellant, at the time that she was burning, cannot be held against her if regard is had to the fact that, at the first opportunity, when she was no longer on fire, she named the appellant as the culprit.

Furthermore, that this was in the presence of the appellant at the scene.

Counsel for the respondent cited the case of R v Andrews [1987] 1 All ER 513 in support of his argument as regards spontaneity in cases involving res gestae. In his heads of argument, he gave the following quote, purportedly from the case, but did not give the specific page at which it appears in the Law Report:

“The test used by the courts, in determining spontaneity, is not necessarily one of exact spontaneity that is defined with mathematical precision. It is sufficient to establish approximate or substantial spontaneity.”

It was his submission, that, the court a quo correctly observed that to fault the deceased for not mentioning the appellant's name at the time that she was on fire would be to take an armchair approach.

It was also his submission, that, it is necessary to consider the totality of the evidence adduced and ascertain whether there was a break in the chain of events. He referred specifically to p26 of the record where the following exchange took place between the defence counsel and the witness, Tawanda Miti, during cross examination:

“Q. How many minutes lapsed from the time you heard the scream and the time that you then saw the now deceased coming from the tap direction?

A. Judging from the events, it could be less than a minute.”

I need to point out, that, in my reading of the judgment in R v Andrews [1987] 1 All ER 513, I was unable to locate the quotation cited by counsel for the respondent.

I make note, at this stage, that, counsel for the appellant's comment on this English authority was that its full content was not captured in the excerpt quoted by counsel for the respondent.

He submitted, that, the uncaptured aspects are;

(i) Firstly, that, if a statement is made after the event, it ordinarily falls outside spontaneity.

(ii) Secondly, if the statement is to be received in evidence there is a mandatory procedure to be followed in the Supreme Court of Judicature after which a preliminary ruling must be made by the judge. Thereafter, evidence of the statement can be given.

He likened the procedure to a trial within a trial in which the court must deal with and answer what he referred to as the recurring question: “At what stage did this end?”

In casu, so he submitted, because the statement was said after the deceased had seen a third party, there are dangers that the deceased had had time for reflection.

In my reading of R v Andrews [1987] 1 All ER 513, I was unable to locate the part of the report that specifically stipulated or referred to the procedure that he referred to and which he likened to the procedure of a trial within a trial (if I understood his submission correctly).

The facts in R v Andrews [1987] 1 All ER 513, as summarised in the headnote, are as follows:

“The appellant and another man knocked on the door of the victim's flat and when the victim opened it the appellant stabbed him in the chest and stomach with a knife and the two men then robbed the flat. The victim was found some minutes later. The police and they arrived very soon after. The victim, who was seriously wounded, told the police that he had been attacked by two men, gave the name of the appellant and the name and address of the other before becoming unconscious. He was then taken to hospital where he died two months later. At the trial of the appellant, for murder, the Crown sought to have the victim's statement to the police admitted in evidence. The trial judge ruled the statement was admissible. The appellant was convicted of manslaughter. He appealed to the Court of Appeal, contending that the victim's statement was inadmissible under the rule against the admission of hearsay evidence. The appeal was dismissed and the appellant appealed to the House of Lords.

Held – Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the res gestae, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim's statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim's mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion.

However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim's statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence. The appeal would accordingly be dismissed….,. Ratten v R [1971] 3 All ER 801 applied. R v Beddington (1879) 14 Cox CC 341 overruled.”…,.

I however found the following useful exposition by LORD WILBERFORCE in Ratten v R [1971] 3 All ER 801…, (a case cited by LORD ACKNER in his speech):

“The person testifying to the words used is liable to cross-examination: the accused person…, can give his own account, if different. There is no such difference in kind or substance between what was said and evidence of what was done (for example, between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction or fabrication, where it exists, is, on the other hand, an entirely valid reason for exclusion, and is probably the real test which judges in fact apply.

In their Lordships opinion, this should be recognised and applied directly as the relevant test: the test should not be the uncertain one, whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters, as the time which elapses between the events, and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria.

As regards statements made after the event, it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must, in principle, be true of statements made before the event. The test should not be the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But, if the drama leading up to the climax has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

The expression 'res gestae' may conveniently sum up these criteria, but, the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges rulings.”…,.

His Lordship also referred to the case of O'Hara v Central SMT Co 1941 SC 363, where, at p381 the Lord President (LORD NORMAND) said that “there must be close association: the words should be, at least, de recenti and not after an interval which would allow time for reflection and concocting a story.” He further quoted LORD FLEMING, who, at p386, said:

“Obviously, statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth.”…,.

He further pertinently states, at p808f-g:

“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”…,.

And, at p809b:

“Facts differ so greatly that it is impossible to lay down any precise general rule: it is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but, whether this is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree that, amongst other things, he may take the statement itself into account.”…,.

Finally, at p808d, he stated as follows:

“…,. In an earlier case in the High Court (Brown v R (1913) 17 CLR 570) where evidence was excluded, ISAACS and POWERS JJ, in their joint judgment (at 597), put the exclusion on the ground that it was a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main narration but arising as an independent and additional transaction.”…,.

In Principles of Evidence, 4ed (Juta) the learned authors, SCHWIKKARD and Van DER MERWE, under the heading “Res Gestae Statements” state that the phrase res gestae does not lend itself to any meaningful translation but that the phrase has developed a meaning in the law of evidence and is succinctly stated by CHOO (In Evidence (2012) 292) as follows:

“Evidence of facts may be admissible as part of the res gestae if these facts are so closely connected in time, place, and circumstances with some transaction which is at issue that they can be said to form part of that transaction.”

Under the subheading “Spontaneous Statements” the learned authors state, that, the reasoning behind the admission of spontaneous statements was that despite their hearsay nature, they are the product of an instinctive response and therefore less likely to be an invention or deliberate distortion. Furthermore, for the statement to be regarded as spontaneous it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the “event” dominated the mind of the declarant at the time of uttering the statement.

The learned authors further refer to the case of S v Tuge 1966 (4) SA 565 (A) wherein:

“[T]he court held that the following conditions needed to exist for a res gestae statement to be admitted into evidence:

(a) 'The original speaker must be shown to be unavailable as a witness';

(b) 'There must have been an occurrence which produced a stress of nervous excitement';

(c) 'The statement must have been made whilst the stress was still 'so operative on the speaker that his reflective powers may be assumed to have been in abeyance';

(d) 'The statement must not amount to a reconstruction of a past event.'”

Against the above backdrop of the position of the law relating to res gestae, I am unable to find fault with the manner in which the court a quo dealt with the issue of res gestae when it stated as follows:

“Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation, that, the cause of the fiasco was the accused. To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach. The deceased named the accused at the first opportune time after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.”

As with any other matter, each case must be decided on its own merits.

In casu, on a view of the evidence adduced before the trial court, and on a consideration of the manner in which the events unfolded, as well as the time frame within which it all happened, the court a quo cannot be faulted when it stated that:

“(I)t cannot be said that there was no spontaneity in the exclamation.”

As commented by LORD WILBERFORCE, at p806h-j:

“The reason why this is so (that is the application of different standards to the admissibility of the hearsay statement) is that concentration tends to be focused on the opaque or at least imprecise Latin phrase rather than on the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been the victim of assault or accident.”

As to the actual words used by the deceased, the court a quo cannot be faulted for believing the State witnesses.

The appellant did not dispute the evidence of the State witnesses as to what was uttered whilst the witnesses were still in their room. He would naturally not have been able to challenge the witnesses as his evidence was that he could not make out what the deceased was saying as she was screaming. The witnesses said that they were awoken by the deceased's screaming out: “oh mother, I am dying!” as well as calling out to the first witness by the deceased.

Further, the appellant did not dispute that the deceased uttered the words attributed to her by the witnesses after she came back from the tap at the back of the rooms and soon after the fire on her had been extinguished.

The deceased had burn injuries, and, as a result, her undergarment was sticking onto her body.

It is at that stage in the unfolding drama that the deceased said that the appellant had poured paraffin on her and set her alight and that he had the match box on him.

As it turned out, the box of matches was recovered from the appellant when he was subjected to a bodily search by the police - albeit he had a different explanation for his possession of it.

The deceased also asked why the appellant had not also poured paraffin on himself as he had said that he wanted both of them to die.

According to Nyasha Tsopotsa, she also said to the appellant that he should finish her off as he had been tormenting or ill-treating her for a long time.

There is another consideration that buttresses the court a quo's assessment of the evidence that was placed before it.

Notably, it was the appellant's stance, that, all that the deceased said in the presence of the State witnesses were all lies.

By implication, the appellant's contention was that the deceased deliberately concocted a false story to his disadvantage.

It was thus the defence's argument that the said utterances ought not to have been accepted or admitted as part of the res gestae.

On this aspect, the trial court dispelled the risk of concoction on the view, that, to hold otherwise would be to adopt or take an armchair approach.

I find no misdirection by the court a quo in this regard on a view of the evidence that was placed before it.

The citation, by the defence, of the case of Thompson v Trevanion (1693) Skin 402 ER 179 does not, in my view, establish any misdirection by the trial court in this regard. I say so for the reason, as already stated earlier, that, it is trite that each case must be determined on its own merits.

In the appellant's heads of argument the following statement by HOLT CJ, in the cited case, is quoted:

“What the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage, might be given in evidence.”

The court was alive to the fact that it was dealing with circumstantial evidence, there being no independent witness to testify as to how the deceased ended up in flames.

It rightly drew the applicable legal principles as espoused in R v Blom 1939 AD 188 and followed in Zacharia Amos Simango v S SC42-14; Abraham Mbovora v S SC75-14.

The two cardinal rules on circumstantial evidence have been stated to be:

“1. The inference to be drawn must be consistent with all the proven facts.

2. The proven facts should be such that they exclude every possible inference from them save the one to be drawn.”

The court isolated the issue that needed to be answered by the circumstantial evidence, viz: “whether or not the deceased poured paraffin upon and burnt herself or it was the accused who set her alight after pouring paraffin on her.”

On the evidence that was placed before the trial court, there are certain baseline facts that stand out.

The appellant was the only person with the deceased in her room when she called out the first witness name and screamed. The deceased did not call for assistance from the appellant, whether on the appellant's evidence or on the evidence of the State witnesses. She called out to Tawanda Miti. The appellant himself, a frequent visitor to the premises, according to the evidence of the State witnesses, did not call out for help from the deceased's neighbours who he must have known to be in their own rooms. Thereafter, the deceased pointed to the appellant as the person who had doused her with paraffin and set her on fire.

Another notable aspect is that the appellant said that the deceased got dressed in a skirt and blouse when he indicated that he wanted to have a discussion with her. But, when the deceased was seen by her neighbours, when they reacted to her distress call, she was observed wearing only a petticoat that was now stuck to her body due to the burning.

There was no explanation by the appellant as to how the skirt that he found burning on the floor after he came back to the room had got there.

In the circumstances, I find no misdirection on the part of the court a quo when it found as follows:

“…,. The complainant was heard screaming and calling out to neighbours. She did not call out to the accused person. If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to and in her presence to assist her or come to her aide (sic). It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.”

The court a quo correctly noted, that, the appellant came to visit the deceased in the dead of night and that he had a grievance that he wanted to raise with her about her reported behaviour. It was the trial court's finding that the appellant must have been incensed and that his interrogation of the deceased was unlikely to have been amicable as he wanted the court to believe. The trial court found the appellant's narration of events, as regards the deceased's reaction to his questions, to be “illogical and improbable to a point that it can safely be said not to have happened.” The court found it to be improbable, that, after she was asked as to why she went to bars in the absence of the appellant, she responded by pouring paraffin on herself and setting herself alight.

I find no misdirection in this finding by the court a quo.

In assessing the sufficiency of the circumstantial evidence that was placed before it, the court a quo drew guidance from, firstly, the cases of R v Sibanda & Others 1965 (4) SA 241 (R.A.) where…, BEADLE CJ, dealing with circumstantial evidence, stated as follows:

“The degree of certainty with which the individual facts must be proved, in criminal cases, must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

It also referred to S v Chabalala 2003 (1) SACR 134 (SCA) in which, at paragraph 15, the following is stated:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination, and, a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”…,.

The findings made by the court a quo must be viewed against the trite position at law, that, as the trial court, it had the advantage of seeing and hearing the witnesses as they testified to the events of the night in question. That is an advantage that an Appellate Court does not have. An Appellate Court hears an appeal on the record and cannot disregard findings made a quo unless a reading of the record patently does not support such findings.

There is no patent misdirection in the findings of the court a quo discernible on a reading of the record.

The court a quo's finding, on the appellant's demeanour as a witness, has an important bearing on the determination of his guilt by the court, particularly in circumstances where the court had found that the State had established a prima facie case against him and that he had to be put on his defence.

Commenting on the appellant's demeanour, the court a quo stated:

“…, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife, as per his testimony.”

The accused's demeanour was adjudged not to be impressive.

This finding, on the appellant's demeanour, by the court a quo, is supported and borne out by a reading of the appellant's confirmed Warned and Cautioned Statement, his Defence Outline, and his testimony in court both in chief and in cross examination.

In the warned and cautioned statement, he said, that, after she had set herself alight, the deceased embraced him and he opened the door while she was still embracing him. When he opened the door, the fire “burned heavily” and she ran to the tap where “she poured some water on her” and he followed her and helped her to extinguish the fire.

In his Defence Outline, he said that after setting herself on fire the deceased “sought to embrace him intending to cause harm to him but he managed to slip away going out of the room.” He said that he also assisted the deceased to put out the fire by pouring some water on her at the water tap.

In his evidence before the court a quo, he said that the deceased wanted to grab him by the neck but she missed and grabbed hold of the upper arm of one hand. He further stated that she got “hold of me in an indication that she did not want to let me go. It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger; that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tap so that I put out the fire. She get hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head and all the body.”

The discrepancies in the extra-curial statement, the Defence Outline, and the evidence in court, in the respect highlighted above, cannot be missed. Significantly, the unexplained discrepancies relate to a stage in the unfolding events that only he could give clear evidence on.

He did not.

In the circumstances, I find no misdirection or error in the court a quo's assessment of the appellant's demeanour.

The issue that has been raised, in relation to the rejection of the appellant's defence by the court a quo must not be considered in isolation.

The court was obliged, as it rightly noted, to consider the totality of the evidence before it. Its reliance on the case of S v Isolano 1985 (2) ZLR 62 (SC), in this regard, cannot be faulted. Therein, LORD DENNING was quoted when he stated as follows in Miller v Minister of Pensions [1947] All ER 372 (KB):

“…, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty but it must carry a high degree of probability.

Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt - but nothing short of this will suffice.”

The court a quo found, that, on a consideration of the evidence before it, and having derived guidance from the authorities, the State had proved the appellant's guilt beyond reasonable doubt and it therefore convicted him of murder with constructive intent.

In the absence of misdirection by the trial court, there is no basis for this court to interfere with the conviction.

No submissions having been made in relation to sentence, this will be taken as a concession that the appeal against sentence has no merit. No basis has been established for interference with the same.

Consequently, it is thus found that there is no merit in this appeal. It is accordingly ordered as follows:

The appeal be and is hereby dismissed in its entirety.

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

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

The accused pleaded not guilty to the allegations, that, on 23 October, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her alight with the result that Modester Chikaka suffered severe burns all over her body which in turn led to her death on 26 October 2011.

The accused elected to give a Defence Outline in support of his plea of denial.

The upshot of his Defence Outline was to the effect that the deceased poured paraffin on herself and set herself alight and that he did not pour paraffin upon the deceased nor setting her alight. He outlined that he confronted the deceased in connection with her “suspected numerous extra marital affairs” since the deceased was his wife. He further outlined that the deceased in fact poured paraffin from a stove upon herself and “somehow” went ahead to and lit herself despite the accused's attempt to stop the deceased from doing so.

He stated that the deceased, after setting herself alight, tried to “embrace the accused person intending to cause harm to him but he managed to slip away going out of the room.”

He outlined that he assisted the deceased to “put off the fire by pouring some water on her at the water tape which was near the house.”

He also further “extinguished the fire which was burning inside the house in question.”

In manner of speaking, the accused's defence was simply, that, the deceased intentionally brought about her death, or committed suicide, by pouring paraffin upon and setting her body alight.

The State opened its case by tendering and producing, by consent of the accused, two affidavits sworn to, respectively, by doctors Ndekwere and Munhumeso.

The affidavit by Dr Ndekwere was produced as exhibit 1.

He examined the now deceased following her transfer from Chivhu Hospital to Harare Hospital on 23 October 2011 around 10:20 hours. He observed and commented that the deceased had suffered 76% open flame burns on her torso, lower, and upper limbs, as well as on the neck. The doctor recommended that the patient should be admitted in the Burns Ward at the hospital.

Exhibit 2 was also a medical affidavit prepared by Dr Munhumeso who examined the now deceased on 23 October 2011 around 0300 hours at Chivhu Hospital. He observed that the now deceased had sustained paraffin burns on the chest, abdomen, and both upper limbs. He stablilized the patient and caused the patient's transfer to Harare Central Hospital for further management after noting the seriousness of the burns which he assessed to be about 35% surface burns.

Another exhibit produced by consent was the accused's confirmed warned and cautioned statement as exhibit 3.

The statement was confirmed by the magistrate on 16 November 2011 following its recording on 2 November 2011.

The accused's statement was to the following effect, quoted verbatim:

“I have understood the caution, but I am denying the charges. On the day in question, I arrived at Modester Chikaka's house at around 0130hrs. She opened the door and I went inside the house and set on a chair. After greetings, I then told her that I wanted to discuss some stories, which were circulating in town, of her affairs with other men. I told her that I was not happy about that because it was embarrassing me.

After I had told my story, that is when Modester Chikaka woke up from the bed where she was sleeping and put on her skirt and blouse, sat on a chair on the other side of the table. She did not respond to any of the questions I put to her.

She got up from where she was seated and picked up a paraffin stove, which was next to the bed, opened it, and poured the paraffin on her clothes. She put the stove on the floor. I then stood up and went to where she was after I had noticed that she was looking for some matches. When I grabbed her, she was already having some matches in her hand. I got hold of her hands so that she could not lit the matches.

We struggled with each other in the house until I managed to take the matches from her.

She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding.

Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tap where she poured some water on her.

I followed her to the tap, helped her to extinguish the fire.

I then went into the house to extinguish fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time. I then boarded Cst Miti's car and went to the hospital. We further visited the police station where I was arrested and Modester Chikaka was taken to the hospital.”

It is important to note the following significant points and conclusions from the statement:

(i) The deceased had already retired to bed at the time that the accused arrived at the deceased's house around 0130 hours. The deceased opened the door, let the accused inside, and the latter sat on a chair.

(ii) The accused confronted the deceased to discuss rumours circulating in Chivhu town, that the deceased was having affairs with other men; such rumours being an embarrassment to the accused and over which he was unhappy.

(iii) The deceased did not respond to the accusations, but, instead, left the bed where she had gone back to sleep, put on her skirt and blouse and sat on a chair on the other side of the table from which the accused sat.

(iv) The deceased, without saying anything, stood up from the chair, picked up a paraffin stove which was next to the bed, opened it, and poured the paraffin on her clothes.

(v) The accused stood up from his chair after noticing that the deceased was looking for some matches. He managed to grab the deceased's hands which were holding some matches so that she would not light the matches. The accused and the deceased struggled with each other and the accused succeeded in taking away the matches from the deceased.

(vi) After the accused had dispossessed the deceased of the matches, the two returned to their sitting positions on the chairs which they had been sitting on before the struggle for possession of the matches.

(vii) For the next ten to fifteen minutes, the accused continued to interrogate the deceased in regard to the same rumours, that the deceased had boyfriends. The deceased did not respond to the accusations.

(viii) As the accused was still seated, the deceased got up from where she was seated, picked up another “matches” struck a match stick and lit herself before the accused could get close to where the deceased was.

(ix) The deceased, after setting herself ablaze, embraced the accused whilst she was screaming. The accused was able to open the door as the deceased was still in an embrace on him and she was crying.

(x) When the door was opened, the fire burned heavily. The deceased then ran to the tap where she poured water on herself. The accused followed and assisted the deceased to extinguish the fire.

(xi) The accused returned to the house, went inside, and extinguished the fire which was burning there. It was then that the deceased informed her neighbours that the accused had burnt her.

(xii) The accused did not dispute the accusation because to him it was a waste of time.

It was therefore clear, on the accused's account, as given to the police, that, the deceased and the accused were engaged in a disagreeable discussion when the tragedy took place.

The accused's explanation to the police was therefore simply, that, when he confronted the deceased about rumoured affairs which the deceased allegedly had with other men the deceased neither denied the accusation nor admitted them. Her response was to open the paraffin stove, pour paraffin upon herself, and attempting to burn herself before being disabled by the accused where after she sat back on the same chair that she had been seated on before her failed attempt to burn herself.

Another follow up interrogation of 10–15 minutes resulted in the deceased reaching for another box of matches and setting herself alight before embracing the accused whilst screaming.

The accused opened the door to the house/room whilst the deceased still held him in an embrace. The deceased then ran to the water tap and poured water on herself with the accused following and assisting her. The deceased reported that the accused had burnt her, an accusation which the accused did not contest because to do so would have been waste of time.

At this stage, it is necessary to note, that, the accused's confirmed statement, whose contents have been outlined, will, as provided in section 256(1) of the Criminal Procedure and Evidence Act, be taken as evidence against the accused, there being no challenge to its admissibility or authenticity.

Accordingly, the statement will be considered together with all other evidence adduced by the State in assessing the sufficiency of evidence led in support of the charge or allegations against the accused.

The State also led evidence from three witnesses, namely, Tawanda Miti, Nyasha Tsopotsa, and Sekai Guramatunhu. The summary of the evidence of these witnesses was as outlined hereunder:

Tawanda Miti

Is a police officer with CID and is based at Southerton Police Station, Harare. When the incident in this matter took place, he was stationed at Chivhu police station. He knew both the deceased and accused as lovers. The deceased and the witness shared the same residence where they lived in adjoining rooms sharing the same veranda. The residence was in the form of a standard block with partitioned rooms each room with its entrance door which was accessed from the veranda. When one is standing on the veranda, the doors to the rooms lead into the rooms from the veranda. The deceased occupied one room at the furthest end. The witness used the next two rooms after the deceased's room and the fourth room door led into the common washroom and toilet. Behind the toilet was a water tap.

There was no dispute as to the make-up of the residence and the rooms.

He testified that he had retired to bed with his wife when he woke up around 2:00am to screaming by a person calling out his name. He got out of bed, opened the door, and got out of his room. He then saw fire flames inside the deceased's room. He was shocked by the spectacle. He then saw the accused arriving on the veranda and he ordered the accused to put out the fire. He next observed the deceased coming from behind the residence in the direction where there was a water tap. He observed burns on the deceased.

He then heard the deceased to say to the accused: “why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased went on to tell the witness that the accused had poured paraffin on her and lit her up.

The deceased also said that the accused had the matches on him, to which the accused responded that the deceased had poured paraffin on herself.

The witness, at this stage, instructed his wife to cover the deceased with a blanket after where the witness provided his vehicle and ferried the deceased and accused to the police station where the accused was placed under arrest and the deceased ferried to hospital.

The State counsel asked the witness to repeat the exact words which the deceased reportedly uttered to the witness when the witness came out of his room to check on what was happening. The witness said:

“She said accused took paraffin from a paraffin stove and poured on her. He then took a matchstick, lit it, and threw it at me. She then went out of the house to pour water on myself whilst screaming.”

The witness further repeated, that, the deceased, when coming from the tap, said: “why did you not set yourself ablaze too since you wanted both of us to die? Why have you killed me?”

Asked whether the accused responded, the witness responded that the accused answered: “I did not kill you. You poured paraffin on yourself.”

The witness said that the accused proceeded to extinguish the fire in the house after coming on to the veranda from the direction of the tap as per the witness assumption.

Under cross-examination, the witness admitted that he did not know for a fact as to who poured paraffin on the deceased. He also did not witness the accused setting the deceased on fire.

The witness was asked: “You did not hear her calling out that accused had set her ablaze whilst you were in your room?” and he responded; “She was saying that. She said so as she called out for my help.”

The witness agreed that in his witness statement, recorded on 3 November 2011, he did not mention that the deceased had shouted that the accused had set her ablaze.

The witness said that the omission could have been a result of oversight.

The witness agreed that he could not deny that the accused assisted the deceased to douse off the flames at the tap.

The witness agreed that the accused denied that he had set the deceased ablaze when the deceased was making the accusation.

He agreed that the accused had responded that the deceased poured paraffin on herself.

The witness said that prior to hearing the screaming which woke him up, he did not hear any commotion whilst he was asleep.

He said that the accused was searched at the charge office and found to be having a box of matches in his pocket. The witness agreed that in his recorded statement he stated that the accused explained his possession of the matches by saying that he took the box of matches from the deceased.

The court's assessment of the evidence of this witness was that he was an honest and impressive witness who gave a simple narration of the events which he witnessed. The cross examination of the witness was not eventful because he maintained his story.

His evidence was clear, that, the deceased accused the accused person of pouring paraffin upon her and setting her ablaze with matches. His evidence was equally clear that the accused responded to the allegation by denying the accusation and instead accusing the deceased of having poured paraffin on herself and set herself ablaze.

It was not suggested to the witness that the deceased did not name the person who had harmed her. What was put to the witness in cross-examination was that the accused denied the allegation.

It was not denied that the deceased went further to ask the accused as to why he had not equally poured paraffin upon himself so that he dies together with the deceased as he had wished or declared.

It was not denied that the deceased uttered the words: “why have you killed me?”

The court, having been impressed by the demeanour of the witness, his self-confidence, and standing unshaken under cross-examination, accepted the evidence of the witness as reliable.

The next witness was Nyasha Tsopotsa, the wife of the last witness.

She testified to having been asleep with the last witness when she heard screaming sounds and a door being forcibly opened. The first witness woke up as well, but, before either of them had left their room, the witness heard the sound of footsteps outside going in the direction of the water tap. The person screaming was calling out her husband, the first witness name.

The first witness went out of their room first before she followed.

When she exited their room, she saw the deceased behind the toilet door dressed only in her petticoat which was stuck to her body. The deceased had visible burns. She saw the accused by the door of the deceased's room.

She heard the deceased saying to the accused: “Dai wandipedza. Wabvira kundishungurudza, wandipisa” which words translated into English mean: “You should just have finished me. You have been persistent in harassing me. You set me on fire.”

She heard the accused to respond saying: “You set yourself on fire.”

She testified that the last witness ordered her to find something to cover the deceased with. She obliged and took one of the deceased's bed sheets and covered her with it.

The first witness, the deceased, and the accused then drove away in the first witness's vehicle.

When asked to recite the first words which she heard the deceased to say, she responded and said in Shona: “Maiwe ndofa” which was translated as: “Mother, I am dying!”

She said that she heard screaming and the door opening at the same time followed by footsteps which proceeded in the direction of the tap.

When the deceased was screaming, she was shouting: “Father of Brendon” in reference to the first witness.

When the witness came out of her room, she said that she saw the deceased talking to the accused person accusing him of having set her alight.

The witness remained at home when the deceased and the accused drove away from the scene.

Under cross examination, the witness agreed that she did not hear the deceased to say that someone was killing her. She said that she heard the deceased saying: “Mother, I am dying.”

The witness said that she did not know what had happened prior to this.

The witness reiterated that when she got out of the house, she heard the deceased saying to the accused: “You poured paraffin on me and burnt me.”

The witness said that she could not dispute that the accused assisted in dousing the deceased of the fire burning her because by the time she got to the scene, the deceased was behind the toilet door accusing the accused of pouring paraffin on her and setting her blaze.

The witness agreed that the accused disputed or denied the allegation.

The witness was not re-examined nor did the court seek any clarifications on her evidence.

The court, as with the last witness, was impressed by the demeanour of the witness. In fact, nothing eventful or new came out of the cross-examination of the witness. Her evidence was largely corroborative of that of the last witness.

Significantly, the accused's counsel, in cross examination, did not deny that the deceased made accusations pointing to the accused as having poured paraffin on her and set her light.

The witness evidence, that the deceased accused the accused of persistent harassment, and that the deceased said that you should have finished me, were not disputed either.

The court therefore accepted that the deceased uttered the words testified to by the witness.

The court also noted that the accused denied the accusations.

The last witness was Sekai Guvamatunhu, a police constable who was one of the duty officers at Chivhu Police Station when the deceased was brought to the police station by the first witness who made a report concerning the deceased having suffered burns.

The deceased was inside the first witness's car.

The witness proceeded to the vehicle, which was parked outside the charge office, and observed the deceased. She noted that the deceased had severe burns. She suggested that the deceased should be ferried to the hospital urgently.

When the witness tried to speak to the deceased, the accused came over to the witness to stop her from speaking to the witness giving the reason that the deceased had been burnt.

The witness accompanied the deceased to the hospital in the first witness's vehicle.

The witness evidence was not contentious, and, in any event, was relevant in respect of completing the chain of events. Nothing really turned on it. The court took and accepted the evidence as given.

The State closed its case....,.

The accused elected to give evidence.

He testified, on oath, that, the deceased was his wife of five (5) years. He denied killing her. On the fateful night, he said that he arrived at the deceased's room around 0100 hours, knocked at the door, and was let in. They greeted each other. He sat on a chair whilst the deceased returned to bed. He then told her that he wanted to speak to the deceased about rumours going around in town and being peddled by other people.

The deceased got out of bed and put on her skirt and blouse. She then pulled a chair and sat across the table from where he sat.

The accused said that he accosted the deceased of being in the habit of frequenting bars in his absence. He told the deceased that she had been seen by his brother's sons, called Kuda Muza and Chivizhe. He then chided her that her frequenting of bars was a source of embarrassment for him.

The deceased did not respond.

He said that the deceased suddenly got up and said that she would set herself on fire. She was working her way to the primus stove as she spoke. The accused had bought for her the primus stove to use in the event that there was no electricity supply. The deceased then poured paraffin on herself, let go of the stove, and got hold of matches.

He quickly grabbed both her hands to disable her from striking the matches. He then firmly gripped the hand which held the match box, took away the match-box and slipped it into his pocket.

He said that he asked the deceased as to why she wanted to set herself alight. The deceased did not respond, but returned to sit on the chair that she had risen from.

After the deceased sat down, he said that he asked her, again, as to why she wanted to set herself on fire and yet all that he was doing was to reprimand her; which was something that did not justify her to set herself on fire.

The deceased did not respond.

He said that he tried to telephone the deceased's sisters and aunt but their phones did not go through. He then sat in his chair for some time apprehensive that the deceased could do something like burning herself. He said that he dozed off because he suddenly heard the sound of a chair moving.

He saw the deceased take another match box.

This was about 30 minutes later after dozing off when he woke up to the sound of a moving chair. He stood up but the deceased lit the matches and set herself ablaze. She then directed the match box towards the accused's bossom. The deceased tried to light the matches in order to set the accused alight but it did not light up.

The accused said that he was surprised because he thought that the paraffin was no longer flammable.

The accused said that he thought about how he could put out the fire. He wore a nylon t/shirt and could not use it. There was a bed with blankets next to where the deceased was but he could not use the blankets because the deceased ran towards him and she appeared as if she wanted to grab him by the neck. She however held his arm in a firm grip as she screamed. He said that he suffered some abrasions. He then said:

“I realised that the fire intensity had increased and I said lets got to the tap so that I put out the fire. She went out first. I followed and said kneel down so that I pour water on you. I then ran some water over her.”

The accused said that Tawanda Miti, the first State witness, and his wife, woke up as he was by the water tap.

Tawanda Miti then said that something was burning and gave the accused a bucket with water telling him to put out the fire. The accused then noted that there were clothes burning on the floor and he stamped on the flames with his feet. He thereafter exited the deceased's room and found the deceased telling Tawanda Miti that he, the accused, had set her on fire.

The deceased was crying as she narrated her ordeal to Tawanda Miti.

The accused said that he then denied burning the deceased and the deceased kept quiet.

He said that the deceased only called out to Tawanda Miti when she was coming from the tap and not before.

When asked by his counsel to suggest any reason why the deceased would have accused him of setting her on fire, the accused responded: “I think it is because of the way I had spoken to her about her behaviour.”

Under cross examination, the accused admitted that he heard the deceased telling Tawanda Miti that the accused had burnt her. He however said that this was said after the fire had been extinguished. He also agreed that the deceased said: “why did you not also burn yourself and die too!” He said that she however was lying, and that, considering her state, he saw no useful purpose in denying.

He said that her utterances, pointing him out as her assailant, were intended to fix him.

The court sought clarifications, on whether the accused saw the place from where the deceased got the matches which the deceased used. He said that he suspected that the box must have been by the of corner table where the deceased sat. The two of them sat 1–2 metres apart. He said that the deceased was his second wife.

The above summarised evidence was, in the main, the accused's trail of events.

The court must decide whether, on the totality of the evidence, the State proved the charge against the accused beyond a reasonable doubt.

Firstly, commenting on the accused's demeanour, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife as per his testimony. The accused's demeanour was adjudged not to be impressive.

It is common cause that there was no independent witness to testify as to how the deceased ended up with the burns. The case falls to be determined on the basis of circumstantial evidence.

In this regard, the principles set out in the case of R v Blom 1939 AD 188 remain authoritative and continue to be followed in this jurisdiction.

In Zacharia Amons Simango v S SC42-14 and Abraham Mbovora v S SC75-14, the Supreme Court held the principles in R v Blom 1939 AD 188 to still hold good in this jurisdiction.

GOWORA JA, in Amons Simango v S SC42-14, stated that there are two cardinal rules which govern the use of circumstantial evidence in a criminal trial, being:

“(1) The inference sought to be drawn must be consistent with all the proven facts.

(2) The proved facts should be such that they exclude every possible inference from them save the one to be drawn.”

As regards the material facts as to what happened at the critical time, it is not disputed that the deceased suffered paraffin burns resulting from her being on fire.

The issue for determination is whether or not the deceased poured paraffin upon, and burnt herself, or it was the accused who sat her alight after pouring paraffin on her.

The State evidence, which was not disputed, was that the deceased pointed out to the accused as the perpetrator who poured paraffin on her and set her ablaze.

It is also not disputed that the accused, prior to the disputed incident with regards how it happened, had come to the deceased's place in the early hours of the morning. The accused accosted the deceased on allegations that the deceased was frequenting bars in his absence and of infidelity.

Such accusations involve matters of emotion; moreso on the part of the accuser who invariably requires answers and confessions.

If, as the accused alleged, the deceased chose to keep quiet and not deny the allegations, it is unlikely that the accused would have taken kindly to this.

The court reasoned, that, the discussion between the two could not have been an amicable one and the accused, in fact, was, in all probability, incensed because he allegedly had evidence of his relatives having informed him.

The accused sought to give the court the impression that he was simply engaged in a mutual and amicable discussion. The court reasoned, that, the interrogation of the deceased could not have been, and, in all probability, was not amicable.

The conduct of the accused had to be looked at within this background founded on probabilities.

The accused's evidence was that the deceased did not respond to the allegations which he made against her but chose to behave as described by the accused, that is: “she suddenly got up and said I will set myself on fire.”

Such reaction and conduct was, in the view of the court, illogical and improbable to a point that it can safely be said not to have happened.

In fact, what the accused seeks the court to accept was a scenario where the deceased was simply asked as to why she went to bars in the absence of the accused and she responded by pouring paraffin upon and setting herself alight.

When assessing evidence, it is trite that the accused's explanation or version of evidence should not be rejected for merely being improbable. It will be rejected only if it is so inherently improbable that it could not reasonably be said to be true: see Shusha v S [2011] ZASCA 1712.

In the reasoning of the court, it is inherently improbable that where parties are involved in a love or marriage relationship, and one party accuses the other party of improper behaviour and infidelity, the accused party does not answer the allegations, but, instead, suddenly adopts a dangerous manoeuvre to inflict harm or injury on themselves.

The inherent improbability in the accused narration of events would need to be considered together with other proven facts in drawing the appropriate inference.

The undisputed evidence of State witnesses was that the deceased named the accused as the person who had poured paraffin on her and set her ablaze.

The complainant was heard screaming and calling out to the neighbours. She did not call out to the accused person.

If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to, and in her presence, to assist her or come to her aid.

It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.

The accused, in his warned and cautioned statement, stated that he opened the door whilst the deceased was holding on to him in an embrace and crying - the accused does not appear to have suffered any injury to his person or damage to his clothing. He stated therein, at the time, that, when he opened the door, the fire was burning heavily.

He indicated therein, that, the deceased ran to the tap where she poured water on herself and that he followed and assisted her to extinguish the fire.

There was a variance with his evidence in chief because when he testified, he said that it was him who suggested to the deceased that they should go to the tap so that he extinguishes the fire. He further said that when he followed to the tap, he asked the deceased to kneel down so that he pours water on her.

The impression which one gets from the testimony is that the accused went all out to assist the deceased and even suggested how the fire could be extinguished.

He was, on his evidence, the savior.

It then becomes mind boggling that immediately following the accused's acts of benevolence towards the deceased, the deceased would immediately turn against her benefactor, after being assisted, and accuse him of burning her.

When a court assesses evidence, it does not treat each individual piece of evidence as an isolated component. Pieces of evidence constitute a mosaic of proof. Doubts in relation to one piece of evidence naturally arises if one picks and chooses to focus on individual evidential pieces. Doubts may be removed when all pieces of evidence are considered together taking into account probabilities.

Whilst the court critically interrogates and subjects each piece of evidence to examination, it is, in the final analysis, necessary to then consider the mosaic as a collective body of evidence. If evidence is not considered together, the court runs the risk of failing to pick the wood from the trees.

In R v Sibanda & Others 1965 (4) SA 241 (RA), BEADLE CJ…, stated, when dealing with circumstantial evidence, as follows;

“The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable ground for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

In S v Chabalala 2003 (1) SACR 134 (SCA)…, it is stated:

“…,. The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence, or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”

The upshot of the dicta in the above cases is that the court should always approach the assessment of evidence holistically and not nitpick aspects or components of evidence without relating them. It is the totality of the evidence which must be considered, and, a founding of guilt or innocence should not be based upon a consideration of facts treated in isolation but collectively.

In casu, the only factors indicative of the accused's innocence were his denial that it was not him who had committed the felony when the deceased pointed him out. He did not deny that the accusation against him was made.

There would appear to have been no logical reason for the deceased to have named the accused and attributed the pouring of paraffin and lighting of the deceased to the accused.

The reasoning of the court, in this regard, has been explained.

Had the deceased awoken to find herself on fire, she would, in all probability, have suspected the accused as he was the only person in the room. However, in casu, the events took place when the deceased was awake and there would, on the proven facts, have been no compelling reason for the deceased to attempt a suicide and attribute the act to the accused.

Counsel have raised the question of res gestae and argued that the evidential facts disqualify the application of the doctrine.

The defence counsel argued that there was no spontaneity in the deceased's exclamation pointing out to the accused as the assailant. For his part, the State counsel, in his closing submissions, indicated that he stood by his submissions in which he had earlier conceded to the defence application for discharge.

The court found the State's approach to be wholly unhelpful.

The State counsel did not even comment on the defence evidence and the probabilities.

It goes without saying, then, that the court does not agree with the veiled concession by the State that the State evidence was inadequate to support the charge.

The unfortunate attitude adopted by the State counsel appeared to be that of saying: “I have already made up my mind that the State has not proved a prima facie case. The court can proceed to make a contrary determination if it wishes.”

Such attitude and approach is improper.

Counsel needed to address the further evidence adduced after the dismissal of the application for discharge of the accused.

Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation that the cause of the fiasco was the accused.

To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach.

The deceased named the accused, at the first opportune time, after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.

The court has already dealt with the issue of the absence of the post-mortem report.

The issues in the case were not that the deceased could have met her death through other causes. The issue was whether the accused is the one who poured paraffin on the deceased and set her ablaze resulting in injuries from which the deceased died.

In such a case, a postmortem would simply be there to give credence to the admitted fact, and its absence is not therefore fatal to the State case.

Having considered all the evidence holistically, and, properly guided by case law on the approach to dealing with circumstantial evidence, the court determined that the only reasonable inference to be drawn on the evidence was that of the guilt of the accused.

The court determined, that, it was the accused who set the deceased ablaze after pouring paraffin on her, and, that, when he did so, he foresaw or realized a real risk or possibility that his conduct may cause death and continued in that conduct regardless.

The accused is therefore found guilty as charged under section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: that is, murder with constructive intent.

SENTENCE

Counsel addressed the court in mitigation and aggravation.

None of them made submissions in respect to whether or not the accused committed the murder in aggravating circumstances.

The court, following a conviction for murder, must make a determination as to whether or not the murder was committed in aggravating circumstances.

Such circumstances, without limitation of other factors which the court may take into account as constituting aggravating circumstances, are set out in section 47(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

None of the factors were present in this case and neither did the court consider that there were other factors present which could be classified as aggravating circumstances for purposes of applying the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act as aforesaid.

It is not necessary to cite extenso the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act and it suffices to incorporate them, by reference, they having been considered and found absent on the facts found proved.

The importance of making a finding on the presence or absence of aggravating circumstances following a conviction for murder is twofold:

(i) Firstly, it enables the court to properly exercise its discretion whether or not to impose the death sentence. The death sentence can only be imposed in the court's discretion in circumstances where a murder is committed in aggravating circumstances.

The provisions of section 337(1) of the Criminal Procedure and Evidence Act are instructive.

Where aggravating circumstances are not present, the death penalty cannot be imposed but imprisonment for life or “any sentence other than the death penalty.”

The “any other penalty” must be interpreted taking into account the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act which provides, that, where a murder is committed in the absence of aggravating circumstances, the court is obliged to impose a sentence of imprisonment for any “definite period.”

(ii) Secondly, the importance of the court making a finding on the presence or absence of aggravating circumstances arises from the fact that section 47(4)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the imposition of a minimum sentence of 20 years upon an offender convicted of murder committed in aggravating circumstances where the court, in the exercise of its discretion, is disinclined or not disposed to impose the death penalty.

The court enquired of both the State and defence counsels as to whether, by not addressing the issue of whether the murder was committed in aggravating circumstances, they were agreed that there were no aggravating circumstances as envisaged in section 47(2) of the Criminal Law (Codification and Reform) Act.

Counsel had apparently not been aware of the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act and had thus not addressed the court on the issue.

The court referred counsel to section 47(2) of the Criminal Law (Codification and Reform) Act, and, after going through its provisions, State counsel conceded that he could not advance any argument for a finding that the murder was committed in aggravating circumstances for the purposes of section 47(2) of the Criminal Law (Codification and Reform) Act aforesaid.

As already indicated, the concession coincided with the prima facie observation of the court on the absence of aggravating circumstances in the commission of the murder.

The court will therefore determine the appropriate sentence on the basis that it is at large, subject to the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act, to impose a sentence of imprisonment upon the accused of such length as it considers appropriate taking into account the objective circumstances surrounding the commission of the offence and balancing them with the accused's personal circumstances and the interests of society.

The interests of society require that the provisions of Chapter 4 (Declaration of Rights) of the Constitution should be upheld. Section 44 of the Constitution reads as follows;

“44 Duty to respect fundamental human rights and freedoms

The State and every person, including juristic persons, and every institution and agency of the Government, at every level, must respect, protect, promote and fulfil the rights and freedoms set out in this chapter.”

The right to life is a fundamental human right and the court, as an agency of Government must give effect to section 44 of the Constitution when imposing sentence upon an offender convicted of murder or violating another's person's right to life as set out in section 48 of the Constitution.

Although this case was committed in 2011, before the promulgation of the present 2013 Constitution, nothing turns on this because the determining period, in terms of section 48 of the current Constitution, is the time of sentence.

Even if argument were to be raised to the contrary, and barring further arguments which could arise as a result of the savings and transitional provisions of the Constitution, in section 18 of the 6th Schedule, on the applicability of this Constitution to cases committed before the Constitution came into office, the position of the accused would not be any better, since, under the previous Constitution, not only was the right to life classified as a fundamental human right, but, legislation then in force made the imposition of a death penalty for murder mandatory in the absence of extenuating circumstances.

The above said, what is not debatable is that societal interests call upon the courts to impose sentences, in murder cases, which emphasize society's abhorrence for persons who commit murder.

Sentences imposed for murder must send a clear message to the accused, and would-be offenders, that the sanctity of human life should be held sacrosanct.

Whilst human rights are indivisible and interdependent, the right to life must rank as the mother of all human rights because without respecting and promoting it, society is decimated, and without society, there can be no human rights to enjoy, protect, promote, or fulfil.

The accused therefore committed a very serious offence in that it deprived society of one of its members.

It must go without argument, and as properly conceded by both counsel, that the offence committed by the accused is of serious proportions.

Despite the acceptance of the seriousness of the offence, and the finding that societal interests must take centre stage in sentencing an offender for the offence of murder, a court should not be retributive.

The remarks of HOLMES JA, in S v Rabie 1975 (4) SA 855, at 861-2, should always be embraced by every sentencer.

The learned judge reminded every sentencer of the importance of being fair to both the convict and society. He emphasised that justice included the element of mercy and that the latter was the hallmark of a civilised society and enlightened criminal justice system.

CORBETT JA, in the same judgment, at page 866, stated;

“A judicial officer should not approach punishment in a spirit of anger, because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal, and the interests of society which has task and the objects of punishment demand of him. Nor should he strive after severity, nor, on the other hand, surrender himself to misplaced pity.

Whilst not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.

It is in the context of this attitude of mind that l see mercy as an element in the determination of the appropriate punishment in the light of all the circumstances of the particular case.”

I must, at once, say that I defer to the dicta by the learned judgement as they commend themselves as pointedly very instructive and jurisprudentially beyond reproach.

The court will be guided accordingly.

Following on the court's embrace of the above approach, it must follow, as stated in S v Zinn 1969 (2) SA 537 (A), that, in assessing sentence, the court must have regard to the offender, the offence, and the interests of society in the imposition of an appropriate sentence.

So far as l stand informed of the court's approach to sentence in this jurisdiction, the approach in the quoted cases relate with the Zimbabwean approaches and indeed with sentencing trends in other jurisdictions where the court exercises a discretion on what sentence to impose for the specified offence.

The accused is a married and mature adult aged 56 years old. He would have been 49 years when the offence was committed. 49 years would still classify him as a mature adult.

He committed a crime of passion in that he suspected the deceased to be promiscuous and that she frequented bars.

At his age, the accused would have been expected to hold his emotions in check and not resorted to violence.

His behaviour betrayed his deemed maturity and expected measured approach to dealing with such problems. Society does not expect mature adults to lose their heads and act irrationally when resolving disputes.

The deceased suffered a lot of pain, as evidenced by the burn degrees which were assessed, initially at 35%, and then 76%.

The burns were so serious that the local district hospital at Chivhu could not treat them and referred the victim to Harare Central Hospital.

The burns were life-threatening, and, as the court found, it was not disputed, in evidence, that the victim died from the burn injuries as charged in the indictment.

The use of paraffin, and setting the deceased ablaze, was clearly an act of barbarism.

The purpose of burning something is to destroy it or change its state.

This is why the court ruled that the accused must have appreciated and did foresee the risk of serious injury or death resulting from the use of paraffin and setting the deceased ablaze.

Many a time, the courts have encouraged, in their judgments, that, domestic disputes should be solved amicably. This can be achieved, firstly, by embracing and respecting each other's rights to privacy and dignity and talking over problems instead of using the rod to instil discipline in the other spouse.

The use of violence by one spouse on another cannot be a panacea to fixing a problem or dispute. Dialogue should be the route to follow.

The behaviour of the accused did not only cost a life but has created animosities within the family of the deceased and his own; with the former now looking upon the accused as a murderer.

The death of a human being is not a small matter which can be brushed under the carpet.

The accused himself will forever live in regret carrying the stigma of a murderer. This is a form of punishment. It amounts to psychological torture that will eternally torment him for life.

In his submissions in mitigation, the defence counsel referred to several cases in this jurisdiction dealing with sentence for murder committed with constructive intent.

The cases predate the promulgation of the 2013 Constitution.

What was referred to then as constructive intent would, more or less, equate to what is envisaged in section 47(1)(b) as read with section 15 of the Criminal Law (Codification and Reform) Act which defines “realisation of a real risk or possibility” as an element of a crime and section 17 which sets out the test for the quoted phrase of the Criminal Law (Codification and Reform) Act.

Constructive intent, in a sense, is the antithesis or converse of actual intent, in that a person is said to have constructive intent where he committed an act in circumstances where he foresaw the risk or possibility of the end result as an eventuality and proceeded with his or her conduct regardless.

The cases which counsel cited, including S v Mukome 2008 (1) ZLR 314; S v Ncube SC149-04; S v Scluli HH146-04; S v Madzima SC70-01; and S v Moyo HB26-20, were all distinguishable on the facts from the case in casu.

In S v Shavi HB124-17, MAKONESE J emphasized that courts should not condone the use of violence as a means of resolving domestic disputes.

The accused, in that case, murdered his wife following a domestic dispute. The accused struck the deceased on the head several times as she lay on the bed. He fled the scene without rendering assistance. A sentence of 20 years imprisonment was imposed.

Other than adding the court's voice to that of MAKONESE J, for parties not to resort to violence in settling domestic disputes, the court is not persuaded to impose a similar sentence herein because the facts are different.

The accused, in casu, denied committing the offence and thus was not remorseful for his conduct.

The court was not placed in a position, because of the denial, to determine the proximate cause for the accused's reaction. This is not to say that the accused should have admitted committing the offence. It was his constitutional right to plead the denial and no adverse inference should be drawn from the denial.

The point made is that where the accused denies committing the offence charged, but the court convicts; it becomes difficult for the accused to turn around and adduce mitigating facts connected with the commission of the offence.

Equally, the court has no facts connected with the commission of the offence as would mitigate the accused's conduct in explaining the rationale for this conduct.

As regards individual deterrence, there was no evidence led to suggest that the accused is of a violent disposition.

He is a first offender.

There is, therefore, on his past, no evidence of propensity or disposition to commission of crimes.

As regards general deterrence, it has already been noted, that, the courts must shun and deprecate domestic violence. Sentences for crimes which arise from domestic violence must be severely punished as a mark of society's abhorrence for such crimes.

Engaging in love relationships and marriages should cease to be looked upon as an antecedent of domestic violence. The relationships should not be considered as a licence for couples to engage in acts of violence or abuse of each other or their families.

In the case of the accused, he and other like-minded people must understand that the exercise of marital power, to the extent that it may still exist in regard to other facets of life, does not extend to committing acts of violence over those over whom the accused and other like minded persons may consider they are entitled to exercise marital power over them.

A factor which weighs heavily in favour of the accused is the prima facie unreasonable delay in bringing this case to trial.

The defence counsel did not invoke the provisions of section 167A of the Criminal Procedure and Evidence Act for the court to enquire on the delay.

Be that as it may, the issue was raised in mitigation.

It was submitted, on the accused's behalf, that, from the time that the accused was arrested, on 23 October 2011, he availed himself to stand trial.

A delay of seven (7) years in bringing an arrested person to trial is prima facie unreasonable unless properly justified by the State.

Defence counsel submitted, that, on no less than three (3) previous occasions, the accused had been committed for trial with the trial being aborted for no fault of the accused.

The law provides for criminal trials to be held within a reasonable period, and, where there has been an unreasonable delay in the completion of the criminal proceedings, such factor should be considered as a mitigating factor in assessing sentence.

The State counsel did not deny that the delayed trial was not due to the conduct or fault of the accused. The fault was with the State whose house was not in order.

The delay in this matter is therefore a factor of weighty mitigation.

Another point requiring comment was the suggestion or submission by defence counsel that the accused be sentenced to a term of imprisonment with a portion thereof suspended.

Both sections 47(4)(b) of the Criminal Law (Codification and Reform) Act and section 337 of the Criminal Procedure and Evidence Act, which are the applicable sections informing sentence in this case, in view of the verdict reached, are clear that the death sentence aside, the accused must be sentenced to a definite term of imprisonment for the offence of murder.

Section 358 of the Criminal Procedure and Evidence Act is the one which empowers the court to suspend a portion of sentence imposed on an offender on appropriate conditions.

The power to suspend the whole, or a portion of a sentence, does not apply to 8th Schedule offences, and, murder, in regard to which the conviction in this case relates, is classified as an 8th Schedule offence.

Resultantly, counsel's prayer cannot be granted as it is not sanctioned by law.

In conclusion, general deterrence must be taken as the prime consideration taken together with other factors in this matter.

There is a clear unlikelihood that the accused will repeat the same offence. Individual deterrence is therefore not of much weight other than looked at from the retributive perspective that the accused should feel the pain of punishment for his transgression.

General deterrence should be the core value of society in matters of violence.

The interests of society will not be served by too harsh a sentence inasmuch as they will not be served by too lenient a sentence. A proper balance must be struck using the triad approach set out in S v Zinn 1969 (2) SA 537 (A).

Bearing in mind, and guided by the principle that each case should be decided on its own facts and circumstances, a sentence in the region of 18 years imprisonment would have been appropriate but for the delay in bringing the accused to trial.

The effect of the delay has been such as to persuade the court that a lesser sentence than the 18 years would meet the justice of the case. The following sentence is therefore imposed:

13 years imprisonment.

HB26-20 : THE STATE vs BENJAMIN MPANDUKI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused has been arraigned in this court on a charge of murder: it being alleged that on 11 July 2017, at Mabhena Village, Mpinda 3, Chief Malisa, the accused unlawfully caused the death of Pamela Mpanduki by striking her all over the body with a fan belt and axe several times intending to cause her death.

The accused pleads not guilty to the charge. He tenders a plea of guilty to the lesser charge of culpable homicide. The state accepts the limited plea.

The agreed facts are as follows:

The accused person was aged 42 years at the time of the offence. The deceased, who was a juvenile aged 15 years, was the accused's daughter.

On the 11th of July 2017, at around 2100 hours, the deceased was at home in the company of her mother and two siblings. The accused person arrived and indicated that he wanted to discipline the deceased. It had been alleged that the deceased was having an affair with a certain young man in the village, one Pride Chando.

The accused took a grinding mill belt made of rubber and invited the deceased into one of the huts.

Whilst inside the hut, the accused assaulted the deceased with the fan belt several times, and indiscriminately, all over the body. The accused subsequently left the homestead and proceeded to his tuckshop where he slept.

The deceased's mother attended to the injured juvenile and observed that she had sustained a cut on the head; had a swollen forehead; and bruises on her back. The deceased proceeded to sleep in her room.

The following morning, the deceased's mother found the deceased dead in her room. She had succumbed to the injuries sustained during the assault.

The matter was reported to the police. The accused was arrested.

The accused denies intentionally causing the death of the deceased.

A post mortem report, compiled by Doctor S Pesanai, at United Bulawayo Hospital, on 17 July 2017, following an examination of the remains of the deceased, reveals that the cause of death was:

(a) Asphyxia;

(b) Bronchoaspiration;

(c) Subarachnoid haemorrhage;

(d) Assault;

On internal examination, the postmortem report reflects that the deceased suffered a scalp haematoma on the left parietal and occipital regions.

It is clear that the assault on the deceased was severe.

We are satisfied, that, on the evidence placed before the court, the accused negligently caused the death of the deceased. There is no evidence that the accused's intention was to bring about the death of the deceased.

In the result, and accordingly, the accused is acquitted on the charge of murder. The accused is found guilty of culpable homicide.

Sentence

The accused is a businessman operating a tuckshop in Mabhena Village under Chief Malisa. He was aged 42 years at the time of the commission of this offence. The accused has been convicted of culpable homicide.

The court shall take into account the mitigating features of the case as set out by the accused's defence counsel.

The accused is single. His marriage fell apart after the commission of this offence. The accused is now the sole breadwinner for three (3) minor children. The children are aged 12 years; 10 years; and 8 years respectively.

The accused pleaded guilty to the lessor charge of culpable homicide.

He has shown some measure of contrition.

The accused spent two (2) months in custody before he was granted bail pending his trial.

The court must weigh the interests of the accused against the interests of justice.

The accused is not a first offender.

The State has tendered a certificate of previous convictions indicating that on 18 March 2017 the accused was convicted of domestic violence. He was sentenced to 24 months imprisonment of which 12 months was suspended for 5 years on the usual condition of future good conduct. The remaining 12 months was suspended if the accused performed 360 hours community service commencing on 27 March 2017.

A memorandum from the Community Service Officer, dated 30 January 2020, has been placed before the court and is in the following terms:

“The information we have as a department is that the offender, Benjamin Mupanduki, was re-arrested during the course of his performance of the community service.

This position was re-affirmed by the school senior teacher, Mr Makayi. Contact number…,. whom we contacted through the Headmaster, Mr Mudzingira, who happens to be new at the station.

He performed, but never completed due to re-arrest.”

It is clear that the accused person committed an offence involving violence and that the previous conviction is relevant.

This court is enjoined to bring into effect the suspended prison sentence.

Further, the accused is not a suitable candidate for community service. He never completed the community service and went on to re-offend.

Before passing sentence, I requested the State to furnish this court with the circumstances surrounding the previous conviction.

The record reflects, that, on 13 January 2017, the accused asked for money from his wife's sister. He wanted to buy some beer. The accused's sister responded that she had no money since she was unemployed. This did not go down well with the accused. The accused's wife tried to restrain the accused, and, in the process, the accused produced a machete from his trousers. The accused struck his wife twice on the neck and right middle finger. The accused's wife sustained serious injuries. The accused went on to plead guilty in that case and was treated as a first time offender.

In this present case, the accused has been convicted of a more serious offence of culpable homicide.

The undisputed facts are, that, for suspecting that his daughter was having an affair with a young man in the village, the accused decided to take matters into his own hands and chastise the juvenile.

In State v Agnes Chipika HB129-17, this court had occasion to deal with a case whose circumstances are similar to the present case.

A 36 year old mother killed her daughter by subjecting her to a prolonged attack with sticks before throttling her. The deceased, in that case, was 14 years old. This court sentenced the accused to an effective two (2) years imprisonment in spite of weighty mitigating circumstances brought to the attention of the court. In that case, I made the following remarks:

“Parents stand in loco parentis to their children. Parents are the last shelter for their children. The abuse displayed by the accused in this matter is shocking and alarming. There can be no human being, let alone a parent, who would administer such rigorous physical punishment on a juvenile of 14 years.

I reject the notion, that, it is our tradition to chastise young children in order to correct them by subjecting them to extreme punishment.

This is not acceptable in a modern society.

Parents who are convicted of such offences must invariably expect custodial sentences. This court would be setting a wrong precedent if a sentence, other than a custodial one, were imposed.”

I affirm the sentiments I made in that case.

It is our view, that, the conduct of the accused is not acceptable. He brutalized his own daughter. He subjected her to prolonged physical beatings using a fan belt and some other object. The injuries reflected in the post-mortem reflect that the deceased died of;

(a) Asphyxia;

(b) Bronchoaspiration;

(c) Subarachnoid haemorrhage;

(d) Assault;

It would be a miscarriage of justice if the accused person were to be handed a non-custodial sentence.

Children deserve protection from their parents. Children have certain rights - including the inahanable right to life.

The accused's behavior is appalling. His moral blameworthiness is high. He used excessive force on a defenceless juvenile aged 15 years.

In the result, the court finds this to be an appropriate sentence:

“Accused is sentenced to 4 years imprisonment. The suspended sentence in Gweru CRB No. 404/17 of 12 months imprisonment is brought into effect. The effective sentence is 5 years imprisonment.”

HB30-20 : THE STATE vs ESTHER MOYO
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused is a female adult aged 54 years old. She appears in this court on a charge of murder. It is alleged, that, on 18 March 2015, at Coolmoreen Farm, Gweru the accused unlawfully and intentionally caused the death of Rejoice Moyo, a female aged three (3) years by striking her all over the body with a switch or other similar object thereby causing her death.

The accused denies the allegations of murder. She tenders a limited plea of guilty with respect to the lessor charge of culpable homicide.

The State accepts the limited plea.

The agreed facts are that the accused was aged 48 years at the time of the commission of the offence. On 18 March 2015, and at around 0600 hours, the deceased and her brother, Ishmael Moyo, were asleep when the accused woke them up so that they could go and relieve themselves. The deceased messed her clothes. This infuriated the accused who took a switch and assaulted the deceased all over the body. The deceased cried in agony as she was being assaulted.

At around 0730 hours, the deceased collapsed and died. She had succumbed to injuries sustained in the assault.

The matter was reported to the police leading to the arrest of the accused.

The body of the deceased was conveyed to United Bulawayo Hospital for a post mortem examination. A pathologist, Doctor I Betancourt, examined the remains of the deceased and concluded that the cause of death was:

(a) Subdural haematoma;

(b) Skull fracture;

(c) Severe head trauma due to beating injury;

On marks of violence, the doctor observed multiple bruises and abrasions on the back and thoracic and abdominal regions, on both legs and thighs. There were lacerations on the face and upper lip. An examination of the skull revealed a fracture on the parietal region and subdural haematoma on both parietal lobes.

A confirmed warned and cautioned statement recorded from the accused on 21 March 2015 is in the following terms:

“I admit that I assaulted the child a day before yesterday after she ate at a neighbour's place. I assaulted her on the legs using a switch.”

It is clear that the accused admits assaulting the juvenile using a switch. The accused does not deny that the deceased died as a result of injuries sustained in the assault.

On the evidence placed before this court, we are satisfied that the accused acted negligently in causing the death of the deceased.

Accordingly, the accused is acquitted on the charge of murder. The accused is convicted of the lessor charge of culpable homicide.

Sentence

The accused is 54 years old. She has been convicted of a serious offence. The court shall take into consideration the weighty mitigating features of the case as outlined by the accused's legal counsel.

The accused is a first offender who has pleaded guilty to culpable homicide. The accused has shown genuine remorse and contrition. She has taken full responsibility for her conduct. She has not sought to deny the charges even when she was aware that State witnesses were not readily available in this matter.

The court takes into account the fact that this case has taken an inordinate period of time before it was finalised. The delays are entirely not the fault of the accused person.

The court will not, however, lose sight of the fact that a juvenile aged three (3) years lost her life.

The accused acted violently against a young child. Even if the court were to accept that the accused acted out of anger, and not sheer vengeance, it is difficult to understand the accused's conduct.

The deceased was helpless. She was subjected to a brutal and sustained attack that left her with a skull fracture and subdural haematoma.

There is clear evidence that excessive force was used in the assault.

Parents stand in loco parentis to their children. The accused was expected to have protected the minor child and not to brutalise her. The accused's conduct is most reprehensible.

Had it not been that the accused is elderly and suffers from high blood pressure, a custodial sentence would have been appropriate: see State v Agnes Chipika HB129-17 and State v Sibanda HB67-15.

The remarks I made in those cases are relevant in the present case.

However, as I mentioned in the case of State v Mutopa HB127-17, nothing would be achieved by sending an elderly, female first offender to prison.

In State v Agnes Chipika HB129-17 and State v Sibanda HB67-15, the accused persons were aged 36 years and 23 years respectively. The court found it appropriate to impose custodial sentences in those cases after considering the ages of the accused.

In this matter, we find that an effective custodial sentence would be inappropriate.

The sentence imposed in every case must fit the offence and the offender. The sentence must meet the ends of justice.

In the result, and accordingly, it is ordered as follows:

“Accused is sentenced to 36 months imprisonment of which 24 months imprisonment is suspended for 5 years on condition accused does not within the period commit an offence involving violence and for which upon conviction accused is sentenced to imprisonment without the option of a fine.

A further 12 months imprisonment is suspended on condition accused completes 420 hours community service at Batanai Old Peoples Home, Gweru on conditions set out by the Probation Officer.”

HB67-15 : THE STATE vs QINISO SIBANDA
Ruled By: MAKONESE J

The accused was arraigned in this court on a murder charge. The State alleges, that, on 29 December 2014, at Chitete 1, Lusulu, Binga, the accused did wrongfully, unlawfully, and intentionally kill and murder Linda Bongiwe Manyathela, a female juvenile aged six (6) years at the time of her death.

The accused pleaded not guilty to the murder charge and tendered a plea of guilty to the lessor charge of culpable homicide.

The State accepted the limited plea.

We are satisfied that the concession by the State was properly made.

The State tendered a Statement of Agreed Facts (exhibit 1), with the consent of defence counsel. The Statement of Agreed Facts is in the following terms:

“STATEMENT OF AGREED FACTS

The State and the defence are agreed that the following are common cause, being that:

1. Accused resides at his homestead, Chitete 1, Lusulu, Binga and was aged 23 years at the time of the commission of the offence.

2. The deceased used to reside at Qiniso Sibanda's homestead, Chitete 1, Lusulu, Binga and was aged 6 years at the time she met her death.

3. The accused is stepfather to the deceased.

4. On the 29th of December 2014, the deceased was left in the custody of accused by Sithembize Manyathela, mother to the deceased.

5. The accused wanted to go to work and he could not find the deceased and was angry.

6. Accused found the deceased at Adam Sibanda's homestead who is their uncle.

7. Accused beat the deceased with a switch and an unknown object until the deceased became unconscious.

8. The accused thereafter carried the deceased to Monicah Sibanda's homestead who is mother to the accused.

9. The accused left the deceased in the kitchen hut.

10. Monicah Sibanda found the deceased in the kitchen hut and tried to render first aid but the deceased showed no signs of life.

11. The accused person pleads not guilty to murder but to culpable homicide in that he negligently cause the death of the deceased.”

It was clearly unlawful for the accused person to chastise the young juvenile indiscriminately and all over the body, inflicting serious and fatal injuries upon the defenceless child.

The post mortem report (exhibit 2) reveals that that the cause of death was:

(a) Subarchnoid haemorrhage;

(b) Head injuries;

Dr S. Pesanai is a qualified medical practitioner and is attached to United Bulawayo Hospitals. On 31 December 2014 he examined the remains of the deceased and compiled his findings in the Post Mortem Report number 937/934/14.

On marks of violence, the postmortem report indicates that the deceased sustained the following injuries; abrasion on the right knee; thigh (4x3)cm; Hip (3x2)cm; face (4x3cm; temporal region (2x1)cm; left face (2x2)cm; multiple abrasions on the neck, too small and numerous to measure; bruises on the buttocks and the back.

An internal examination by the pathologist reflects that there was scalp haematoma on the left frontal region (3x2)cm and extensive subarchnoid haemorrhage.

In the opinion of the Doctor, the injuries were consistent with an assault.

On the basis of the evidence presented before the court, we were satisfied that the accused negligently caused the death of the juvenile.

We found the accused not guilty of murder and duly acquitted him on that charge. The accused was found guilty in respect of the lessor charge of culpable homicide.

In assessing an appropriate sentence, the court took into account all the mitigating factors advanced on behalf of the accused by his legal counsel.

The accused was aged 23 years at the time of the offence.

The accused is married to the deceased's mother and they have one child together who is of a tender age of 1 year and 8 months. The accused is the sole breadwinner for his family who survives by performing part time piece jobs.

The accused pleaded guilty and showed some amount of regret.

He is a youthful offender and lacks maturity.

The accused's moral blameworthiness is however on the high side. He was left in the custody of the deceased. When he could not locate her, he searched for her and eventually found her at Monicah Sibanda's homestead. He was annoyed by the disappearance of the deceased, and, when he finally caught up with her, he was angry. He subjected to her to a brutal and sustained assault using a switch and an unknown object. He assaulted the deceased indiscriminately and used excessive force.

The post-mortem report, exhibit 2, confirms that the deceased had multiple bruises and abrasions all over the body. The deceased also suffered subarchnoid haemorrhage.

The child must have endured unimaginable pain.

It is unconscionable that someone could inflict such injuries on a child. This is the worst form of child abuse. This form of assault, on young children, goes against all Legal Instruments on the Rights of Children. The assault has no place in a modern society and is barbaric.

The courts have noted that cases of child abuse have become common place. Parents who are charged with the duty of looking after young children stand in loco parentis to the minor children.

The young girl's only crime was that she was not at home when the accused wanted to go and work.

The court must pass sentences that reflect the seriousness of this type of offence.

What is more disconcerting is that, upon realizing that the young girl was injured and motionless, the accused carried the child on his shoulder and dumped her at his mother's homestead. The accused did not bother to render first aid or alert other villagers about the injured girl. The accused fled the scene.

A young life was needlessly lost.

The court is of the view that a sentence that would fit the offence and the offender is as follows:

The accused is sentenced to seven (7) years imprisonment.

HB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The deceased, Nestai Ncube, was employed as a lecturer at the Midlands State University at the time she met her death. She was 48 years old. She had been married to the accused since 2001 and resided at their matrimonial home at 33 Wentworth Road, Southdowns, Gweru.

The accused, who is aged 63, is facing a charge of murder; it being alleged, that, during the early hours of 27 February 2016, the accused armed himself with a home-made mattock and struck the deceased with it on the head three times. As a result, the deceased sustained three deep wounds in the head, leading to her death.

The accused pleads not guilty to the charge, and, in his defence, avers that he acted in self defence as he was under imminent attack from the deceased.

The bulk of the evidence in this matter is common cause or at least not in dispute. It shall not be necessary to repeat the contents of the State Outline which has been tendered into the record of proceedings and now forms part of the record as exhibit 1.

The Defence Outline was tendered as exhibit 2.

In brief, the accused's defence was, that, prior to this fateful day, the accused had established that the deceased was engaged in an extra-marital affair with one Prosper Maburo. The accused had confronted the deceased's lover who admitted the illicit relationship and promised to terminate the affair.

This did not happen.

In a desperate attempt to save his marriage, the accused had roped in the assistance of two pastors from the Seventh Day Adventist Church, one Xmas Mutero and Artwell Tapera, to counsel the deceased and persuade her to end the relationship.

On the night of 26 February 2016, the two pastors visited the deceased at her matrimonial home and held lengthy discussions with the deceased. At the end of these discussions, the deceased said she needed more time to consider the issue.

The accused avers, that, following this discussion he retired to bed around 9pm. The deceased said she was going to the kitchen to wash dishes.

The accused states, that, he did not notice the time the deceased came to the bedroom. He states that around 2am the following morning the deceased woke up and left the bedroom going to the toilet. When she returned, she was in possession of a home-made mattock (exhibit 5) which she swung at him while he lay in bed.

The accused managed to wrestle the deceased and dispossessed her of the weapon.

The accused then struck the deceased three times in the head as she tried to get up from the bed where she had fallen. The deceased fell down and never got up again thereafter.

She had been fatally injured.

The accused locked the house and the outer gate to the premises and drove off to Sanyathi where he later handed himself to the police.

The accused avers that he had no intention to kill the deceased but acted in self-defence at the spur of the moment and did not have time to rationalize things but had taken immediate defensive measures.

The State tendered the accused's confirmed warned and cautioned statement (exhibit 3) recorded at Gweru on 1 March 2016. In this statement, the accused gave his response to the allegations as follows:

“On the night of Friday 26th February 2016, Pastors Tapera and Mutero had held discussions with Nestai Ncube on the marital problems between myself and Nestai Ncube as I was emotionally stressed. These related to her affair with Prosper Maburo which had been going on for quite some time resulting in her not coming home sometimes and to my former wife, Grace Muchadenyika, whom she thought I was having an affair with and she indicated that she was bitter.

Nestai Ncube needed time to consider the request that she lets go off the bitterness (sic) and vengefulness.

Early Saturday, around 0200 or 0300 hours, Nestai Ncube woke up to visit the toilet, and, after quite a long time, she came back; and, as I looked through the bedroom door, I noticed that she was holding an object. On entering the bedroom she proceeded to where I slept and swung the object intending to strike me.

We wrestled and I managed to get the weapon and struck her and she groaned.

I left home thereafter fearing for my life as my brothers-in-law were known to be violent.

Later, I phoned Xmas Mutero to go and check Nestai Ncube's condition and possibly take her to hospital. I proceeded to Sanyathi to brief my mother and relatives on the matter, and I voluntarily handed myself over to the police at Sanyathi Police Station.

It was never my intention to cause the death of Nestai Ncube.”

After recording the accused's response to the charge, the accused was asked further questions relating to his defence, and two of those questions were as follows:

“Q. When you struck Nestai Ncube where was she?

A. She was on the bed after she had fallen on the bed when I was trying to take the object from her….,.

Q. How many times did you strike her, and on which part of the body?

A. Three times, around the neck area.”

It is important to note, that, the accused stuck to his defence throughout the trial and did not depart from his Defence Outline in material respects when he gave viva voce evidence.

The State tendered the post mortem report as exhibit 4.

The postmortem report was prepared by Dr Ivian Betancourt following an examination on the remains of the deceased at United Bulawayo Hospitals on 29 February 2016.

The pathologist concluded that the cause of death was:

(a) Severe cerebral damage;

(b) Subdural haematoma, skull bones fractures;

(c) Severe head trauma due to unknown object;

On marks of violence, the report indicates the following injuries:

(1) Sutured wound, 10cm, on the middle frontal region;

(2) Sutured wound, 12cm, on the right temporal and parietal region;

(3) Sutured wound, 3cm, on the back of right ear;

(4) Abrasion (one circular abrasions) on the left scapular region;

(5) Swollen both eyelids, marked on the right eyelid;

The post-mortem further reveals the following injuries on the skull:

(1) Subgaleal haematoma on the frontal and both parietal areas and occipital region;

(2) Skull bones fractures (multiple) localized in frontal region (complete frontal region) and another big stellate fracture with bone fragments localized in right temporal and parietal region;

(3) Sortie of encephalic mass and severe brain damage;

(4) Big right subdural haematoma through the right skull fracture seen;

The State produced the murder weapon; a home-made mattock, as exhibit 5, and a visual observation of the weapon reflects that it is a garden tool shaped like a pick axe, with blunt edges on both sides. The mattock has a handle 89cm long; its blade is 23cm long; and it weighs 2.6kg.

The State, with the consent of the defence counsel, introduced the summary of the evidence of the following State witnesses as it appears in the State Outline by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07), namely;

(a) Xmas Mutero;

(b) Nixion Mupasiri;

(c) Osbert Jere;

(d) Prisca Mbwende;

(e) Conrad Ngungu;

(f) Detective Sergeant Mushura;

(g) Detective Sergeant Sakala;

(h) Dr I. Betancourt;

The State opened its case by leading oral testimony from its sole witness Constance Chirigo.

This witness testified that she is employed at Gweru Provincial Hospital as a nurse. She has nine years nursing experience and she was on duty on 27 February 2016, in the casualty ward, when the deceased was brought to the hospital in an ambulance. The witness pushed the patient on the stretcher into the resuscitation room.

The deceased was badly injured and was not able to talk.

She observed two deep wounds, one near the forehead, and the other at the back of the head. The deceased was bleeding profusely from these injuries. The doctor on duty was called to attend to the patient. The wounds were sutured and she was transferred to the female surgical ward for further treatment and care.

The witness's evidence was not challenged by defence counsel as it was essentially common cause.

The State closed its case at that stage.

The accused opened the defence case by giving viva voce evidence under oath.

To a large extent, the accused adhered to his Defence Outline and maintained that he acted in self defence.

The accused narrated, in detail, how he had tried to restrain the deceased from engaging in an adulterous relationship with one Prosper Maburo. He testified that he had confronted his wife's lover at his workplace and warned him not to continue his relationship with the deceased. The deceased's lover promised to discuss the matter with the deceased and thereafter give him feedback.

The accused stated that he got the impression that the affair had persisted as his wife continued to come home late, and, in certain cases, did not come back home at all.

This prompted the accused to solicit the assistance of Xmas Mutero and Artwell Tapera, two pastors from the Seventh Day Adventist Church (SDA Church). The two arrived at the accused's matrimonial home on 26 February 2016 and held a lengthy discussion with the deceased.

The accused testified, that, at the end of the meeting with the pastors, the deceased intimated that she still required more time to consider the issue.

It would seem that the failure by the deceased to undertake to put an end to the illicit affair was not taken well by the accused. It would also appear he was frustrated as he went to bed early.

The deceased meanwhile went to the kitchen to wash the dishes.

What transpired in the bedroom, in the early hours of the morning of 27 February 2016, is only known to the accused and the deceased, who is no longer alive to testify. There is no independent evidence to corroborate or rebut the accused's version of events.

The court shall, to a large degree, assess the evidence placed before it and weigh the probabilities before accepting or rejecting such evidence.

The court is mindful that the accused's version can only be rejected if it is found to be false and if it is not reasonably possibly true.

The accused's version is that he went to bed alone leaving the deceased to do the dishes. The accused stated that he believed that the deceased was only trying to find an excuse to update her lover on the outcome of her discussion with the pastors. The accused says he proceeded to sleep and did not notice at what stage the deceased came to bed.

He said that in the early hours of the fateful day, the deceased had woken up, ostensibly to visit the toilet. He said she took an unusually long time before returning to the bedroom. When she came back, and while he was lying in his bed, he observed that the deceased was holding an object in her hand.

The accused remained still, and, when the deceased was about a metre and half away he realised that she was in fact in possession of a home-made mattock (exhibit 5).

The accused said the deceased swung the mattock towards him and aimed at his chest.

The accused blocked the blow, and there was a tussle for the weapon. The accused dispossessed the deceased of the weapon, resulting in the deceased falling on the bed on her stomach.

The accused said he was seized with fear and could not accurately remember what happened thereafter.

On how he struck the deceased, the accused had this to say:

“As the two of us wrestled, I got hold of exhibit 5. I do not know what happened thereafter. What I still remember is that deceased was still trying to get up that is when I struck her with exhibit 5.”…,.

The accused then narrated that he struck the deceased at least three times, and, when he realized that the deceased was on the floor and injured, he exited the bedroom in a hurry, locked the house and the outside gate, and drove off.

The accused said he knew the deceased's brothers to be persons of violent disposition so he felt unsafe and took a decision to drive to his home in Sanyathi. He did not think it wise to report the matter at a police station in Gweru.

From the accused's own version, he struck the deceased on the head on more than one occasion as she was trying to get up from the bed.

She was no longer in possession of the mattock. He had managed to overpower the deceased and he was in a stronger position.

On the accused's own version, as she lay on the bed, after he had taken the murder weapon from her, she posed no real danger to him. The accused had evidently averted the danger by taking the mattock.

At that stage, the person who was in imminent danger was the deceased.

The accused did not choose to leave the bedroom when he had secured the weapon. He only thought of striking the deceased.

The accused accepts that he delivered at least three blows to the head in quick succession.

He testified, that, he had no time to think or rationalize things and merely took defensive measures. The accused refused to disclose the amount of force he used to inflict the injuries but readily conceded that the extent of the injuries reflected in the post mortem report is indicative of the fact that excessive force was used.

Factual findings by the Court

This court makes a specific finding, that, from the accused's own admission, he was under no imminent attack when he struck the deceased.

The accused was content to state that he was full of fear.

The accused failed to explain why he struck the deceased repeatedly when he was aware that he had already averted the danger.

Counsel for the State fairly put the position when he indicated that had it been shown that the accused introduced the mattock into the bedroom, the matter would have taken an entirely different complexion.

The court makes a finding, that, on the facts, the accused used excessive force and attacked a defenceless person indiscriminately.

The court rejects the accused's explanation, that, when he saw the deceased approaching him with a weapon he remained still in bed and did nothing.

The accused's version on this aspect is not within ordinary human experience.

In the face of danger, any normal human being will seek to confront the source of danger or run away from it.

It is clear that on this aspect the accused was not telling the truth and one would wonder what he was hiding.

Before concluding the assessment of the accused's evidence, the court observes that the demeanor of the accused in the witness stand was poor.

The accused did not answer questions put to him directly and sought to give lengthy explanations. The accused's defence counsel was so exasperated by the accused's manner of answering questions and had to caution the accused to answer the questions put to him.

One crucial observation is that the accused was free to give a detailed account of each and every event up to the moment he went to bed on 26 February 2016. The accused seems to have suffered loss of memory from the point he says he dispossessed the deceased of the murder weapon.

The accused was evidently uncomfortable to confront the gory details of his attack upon the deceased.

On the most critical aspects of this matter, the accused pretended not to remember much.

It is the court's view that the accused was very mean with the truth on his account of what happened in the bedroom. The accused, it would seem, only told the court what he wanted to disclose.

Analysis of the Law

In his book, The Guide to Zimbabwean Criminal Law, PROFESSOR G. FELTOE discusses the distinction between positive or actual intent and constructive intent or legal intent. The author characterises the distinction as follows:

Actual Intention

(a) Desires death. Death is the aim and object; or

(b) Death is not the aim and object, but, in the process of engaging in some activity, foresees death as a substantially certain result and proceeds regardless as to whether this consequence ensues.

Legal Intention

Does not mean to bring about death, but foresees it as a possibility whilst engaged in some activity regardless as to whether death ensues. The requirements are thus:

(a) Subjective foresight;

(b) As to possibility not probability;

(c) Recklessness;

These requirements are now fairly established in our law.

For the court to return a verdict of murder with actual intent, the court must be satisfied, beyond reasonable doubt, that:

(a) The accused's fixed and settled intention was to bring about the death of his victim;

(b) While pursuing another objective, he foresees the death of his victim as a substantially certain result and proceeds with his conduct recklessly.

See the case of Robert Mugwanda v The State SC19-02; The State v Herold Moyo HB19-17.

Self Defence

In our law, the law of private defence, that is, self-defence; and defence of third persons; and defence of property provides that a person is entitled to take reasonable steps to defend himself against an unlawful attack.

Under our law, the defence has been codified, and section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] sets out the requirements for this defence:

(a) There must be an unlawful attack;

(b) The attack must be on the accused;

(c) The attack must have commenced or imminent;

(d) The action taken must be necessary to avert the attack;

(e) The means used to avert the attack must be reasonable;

The court's approach to this defence should be as objective as possible.

The court must take into account the circumstances of the victim and all the emotional pressures which the accused was subjected to. The court must assess the threat that was directed at the accused and the possibility of a fatality arising therefrom.

See the cases of The State v Nkululeko Nleya HB138-02 and Ntsoni v Minister of Law and Order 1990 (1) SA 572.

On the facts of the instant case, the following facts have been established:

(a) The accused perceived the imminent threat to be the mattock that was being wielded by the deceased;

(b) The accused succeeded in averting the danger by dispossessing the deceased of the weapon;

(c) When the accused struck the deceased, he had eliminated the danger and the deceased was lying on the bed trying to get up;

(d) When the accused struck the deceased, he had various options and could have simply exited the bedroom. He did not have to assault the deceased.

(e) The force used in striking the deceased was disproportionate in all the circumstances of the case.

Counsel for the accused fairly conceded, in my view, that he had difficulty in finding the rationality of the means used by the accused in averting the perceived danger.

He conceded that a perusal of the findings in the postmortem report reveals that the degree and extent of the injuries leads to only one conclusion - that the force used to avert the danger was exceedingly disproportionate.

The accused acted recklessly and proceeded with his conduct regardless of the consequences.

The accused's explanation for striking the deceased is that he felt afraid and believed that she might get up and wrestle for the weapon again.

This explanation is not reasonable and does not accord with common sense.

In my view, the State has managed to prove that the accused is guilty of murder with constructive intent.

He did not intend, on the evidence before us, to bring about the death of the deceased. There is, however, proof beyond reasonable doubt that the accused subjectively foresaw death as a substantial possibility when he repeatedly struck the accused on the head with a dangerous weapon.

At the material time, the accused had averted the danger. He failed to explain why it was necessary to inflict the injuries on a person who was lying on a bed. He had neutralized the danger.

We, accordingly, find the accused guilty of murder with constructive intent.

Sentence

This court takes into account the mitigating features of this case as against the aggravating factors.

The accused is a mature man aged 64 years. He spent one month in prison before he was granted bail pending trial. He is a first offender and has lived a blameless life for the greater part of his life.

He has however been convicted of a very serious offence.

His moral blameworthiness is exceedingly high having regard to the following factors;

(i) He savagely attacked the deceased who was lying on the bed and trying to get up;

(ii) He struck the deceased on the head using a dangerous weapon;

(iii) He struck the deceased repeatedly and aimed at the head;

(iv) He used excessive force as shown by the injuries reflected in the post mortem report.

After the assault, the deceased fled the scene and failed to render any form of assistance to the injured victim.

The force used by the accused was grossly disproportionate to the perceived danger.

What further aggravates the matter is that the accused has shown no signs of remorse and has not shown any regret for his conduct.

The court does take into account the fact that prior to this offence, the deceased had failed to terminate her extra marital affair with her lover. This fact however must be taken together with the fact that the accused himself was accused of having an affair with his ex-wife.

The moral turpitude of both parties was therefore on level terms.

These courts will not condone the use of violence as a means of resolving matrimonial disputes. This was a barbaric and despicable attack on a defenceless woman. The accused struck three (3) fatal blows and the deceased died a painful death. This court must impose a sentence that is just and fair. The sentence must reflect the seriousness of the offence.

The accused is sentenced to 20 years imprisonment.

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused, who was aged 56 years at the time of this offence, appears in this court on a charge of murder: it is alleged, that, on 30 November 2008, and at village Matavire, Chief Chireya, Gokwe, the accused did wrongfully and unlawfully kill and murder a female juvenile, Linda Mutopa, then aged eight (8) years.

The accused pleads not guilty to the charge and tenders a limited plea of guilty with respect to culpable homicide.

The State accepts the limited plea.

The brief facts of the case, as contained in the Statement of Agreed Facts (exhibit 1) are, that, on the date in question, the accused resided with the deceased, who was her granddaughter, at her homestead. In the early hours of the day, the accused left her home to fetch some water, leaving the deceased and her siblings behind.

Later in the day, the accused returned home and learnt that the deceased had consumed groundnut seed which had been reserved for planting. The accused confronted the deceased and demanded to know why she had consumed the groundnuts. The deceased remained silent and the accused slapped her in the face. The accused proceeded to hold the back of the deceased's hand, hitting the head against the kitchen wall.

The deceased fell to the ground unconscious.

Despite attempts to render assistance to the deceased, she died as a result of injuries sustained in the assault. The matter was reported to the police, leading to the arrest of the accused.

The accused's body was ferried to Mpilo Central Hospital for a post mortem examination.

A report compiled by Dr I. Jekenya, under report number 548/543/2008, reveals that the proximate cause of death was:

(a) Brain haemorrhage;

(b) Head injury;

(c) Assault;

On external and internal examination, the pathologist observed, that, the body was in an advanced state of decomposition. The postmortem report has been marked as exhibit 2.

We are satisfied, that, from the evidence presented to this court, the accused negligently caused the death of the deceased. The accused, however, did not have the requisite mens rea to bring about the death of the juvenile.

We accordingly find the accused not guilty in respect of the charge of murder. The accused is found guilty of culpable homicide.

Sentence

The accused was aged 56 years old at the time of the commission of the offence. Time has moved on. The accused is now aged 65 years. The accused appears old and frail. She is poor sighted. It has been submitted, on her behalf, that, she has two minor grand children to look after. She takes care of an elderly sister who is mentally challenged.

The mitigating factors of this case far outweigh the aggravating features.

The court would be failing in its duty if it lost sight of the weighty mitigating factors that have been placed before the court.

The matter has taken an inordinately long time to finalise. In spite of the fact that the accused is partly to blame in this matter, because she could not be located at some stage during 2010, nonetheless the accused's constitutional right to a fair and speedy trial has been violated - the accused has waited for nine (9) years for her trial.

The accused has pleaded guilty and shown remorse and contrition. She will forever live with the stigma of having caused the death of her grandchild.

The accused has gone through emotional and mental trauma for the period she has awaited trial. We are informed that the accused has been in remand prison for almost three months awaiting trial since her indictment.

She appears distraught and weak.

It is the view of this court that nothing will be achieved by sending the elderly, female, first offender to prison.

The courts have a duty to uphold the sanctity of human life, but, in the same breath, this court has to be alive to this stark reality of the accused's physical condition at this stage.

A custodial sentence would be wholly inappropriate.

This court therefore sentences the accused as follows:

“4 years in prison wholly suspended for 5 years on condition accused is not within that period convicted of an offence involving violence and for which she is sentenced to a term of imprisonment without the option of a fine.”

HB129-17 : THE STATE vs AGNES CHIPIKA
Ruled By: MAKONESE J

The 14 year old Nobert Majoni died at the hands of his mother on 10 December 2015.

The accused was upset that the deceased had consumed a certain quantity of rice which had been reserved by Sibongile Chipika for consumption the following day. The accused struck the deceased all over the body with switches and throttled him leading to his death.

The accused pleads not guilty to the charge of murder and tenders a limited plea of guilty in respect of the lessor charge of culpable homicide.

The State has accepted the limited plea and a Statement of Agreed Facts have been tendered into the record of proceedings as exhibit 1.

In brief, the facts of this matter are as follows:

The deceased was aged 14 years at the time he met his untimely death. The accused is his biological mother. The accused was aged 36 years at the relevant time. On 9 December 2015, and in the evening hours, the accused person, her sister, Sibongile Chipika, the deceased, and two other children gathered for supper where rice was served. Sibongile did not finish her portion and reserved it for the following day.

On 10 December 2015, Sibongile Chipika discovered that her rice had been consumed. The deceased was the prime suspect. The deceased was quizzed over the missing rice and he failed to proffer an acceptable explanation.

This led to Sibongile Chipika roping in Eunita Sibanda and Shyline Chipika to fetch some switches. The deceased was then subjected to a prolonged assault on the head, hands, and legs using switches. The assault was sustained and was indiscriminate and resulted in the deceased falling unconscious. At some stage, the accused throttled the juvenile with her bare hands.

The deceased died as a result of injuries inflicted in the assault despite efforts by the accused, and others, to administer first aid by pouring water over the injured juvenile.

The post mortem report, compiled by Dr Ivian Betancourt, on 14 December 2015, has been marked as exhibit 2. The cause of death was undetermined due to the advanced state of decomposition of the remains.

On the evidence placed before this court, we are satisfied that the limited plea has been properly made and conceded by the State. There is no evidence that the accused intended to cause the death of the deceased. The accused is accordingly found not guilty and acquitted on the charge of murder.

The accused is however found guilty of culpable homicide.

Sentence

The accused is a vendor selling sweets and airtime. The accused has been convicted of culpable homicide. There exist weighty mitigating features of the case as articulated by the accused's defence counsel.

These shall all be taken into account.

The accused is a single mother with heavy social responsibilities with five (5) children. The youngest is 8 years old. At this moment, the children are in the safe custody of their grandfather and grandmother. The accused has a low level of education and is not sophisticated having gone up to Grade 7. She earned an average of $60 per month through her activities.

She spent three (3) months in prison before she was granted bail and has thus already served part of her sentence.

She has, through her defence counsel, shown genuine remorse and contrition and that is reflected in her tendering a plea of guilty to culpable homicide.

The court must weigh these mitigating features against the interests of justice.

Her moral blameworthiness is excessively high. She not only assaulted the child for a sustained and prolonged duration. She throttled the child and he eventually fell unconscious.

The behaviour is not expected from parents. Parents stand in loco parentis to their children. Parents are the last shelter for their children.

The abuse displayed by the accused in this matter is shocking and alarming. There can be no human being, let alone a parent, who would administer such rigorous physical punishment on a juvenile of 14 years.

I reject the notion that it is our tradition to chastise young children in order to correct them by subjecting them to extreme punishment. This is not acceptable in a modern society.

Parents who are convicted of such offences must invariably expect custodial sentences. This court would be setting a wrong precedent if a sentence, other than a custodial one, were imposed.

These courts would fail in their duty of upholding the sanctity of human life if a sentence of community service were imposed in this matter. The sentence this court imposes must be just and fair and must meet the ends of justice.

“Accused is sentenced to 5 years imprisonment of which 3 years is suspended for 5 years on condition accused is not within that period convicted of an offence of which assault or violence on another person is an element for which she is sentenced to imprisonment without the option of a fine.”

HH435-16 : THE STATE vs WESTON MOMBESHORA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

The accused was indicted for trial before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: it being alleged against him, that, on 18 February 2015, at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility, caused the death of Rombayi Weston Mombeshora by striking him on the head six times with a baton stick resulting in him sustaining injuries from which he died.

On 15 June 2016, when the matter was to be heard, both State and defence counsel made indications that the evidence and circumstances revealed a lesser offence of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequent to this observation and understanding in court session, a charge of culpable homicide was put to the accused.

The State's contention was that on 18 February 2015, and at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, Weston Mombeshora unlawfully caused the death of Rombayi Weston Mombeshora by striking him with a rubber baton on the head, negligently, failing to realize that death may result from the conduct.

The accused pleaded guilty to the charge and defence counsel confirmed the plea accorded with his instructions. The Statement of Agreed Facts prepared by both counsel was read and admitted as evidence or part of the record.

In summary, it could clearly be discerned from the Statement of Agreed Facts that:

1. The accused, aged 26, and the deceased, aged 71, were son and father respectively.

2. The deceased instructed the accused to leave his homestead, and that, on 18 February 2015, upon the deceased and his other son, Philemon Tariro Mombeshora's return from fetching firewood, the deceased was not amused to find the accused still at his homestead.

3. A quarrel ensued between the deceased and the accused and the deceased used a rubber baton to assault the accused. A scuffle ensued, and the accused wrestled the baton from the deceased.

4. The accused struck the deceased with the rubber baton on his head before departing to notify his uncle, the deceased's brother.

5. Later on that day, the deceased passed on as a result of injuries sustained due to the assault.

The cause of death was established as intracerebral hemorrhage.

The State tendered, by consent, the post mortem report compiled by Doctor Tendai L. Nyafesa which confirmed the cause of death as having culminated from scalp hemorrhage and intra-cerebral bleeding leading to the conclusion that the cause of death was intracerebral haemorrhage.

The rubber baton was also tendered in evidence by consent as exhibit 2.

Counsel for the defence confirmed having explained the essential elements of the offence of culpable homicide to the accused. He stated the accused appreciated the offence and the exigencies thereto and that his plea of guilty was a genuine plea in full comprehension of the essential elements of the offence of culpable homicide.

Having been satisfied of compliance with section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], and that the plea was well-informed from the explanation of essential elements and Statement of Agreed Facts, we retained a verdict of guilty of culpable homicide.

After the verdict of guilty, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

HB24-15 : THE STATE vs THEMBINKOSI GUMBI
Ruled By: KAMOCHA J

The 42 years old accused pleaded not guilty to the murder of his wife which was alleged to have occurred on 29 December 2013 at House Number 400B/6 Mbizo, in Kwekwe in the Midlands Province.

He was alleged to have caused her death by striking her on the head and all over the body several times with a shock absorber, intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

The State Outline was read and produced as exhibit one.

Exhibit 2 was the Defence Outline which was also read for the record and was produced.

I do not propose to read exhibits 1 and 2 all over again.

The accused's confirmed extra curial statement was produced as exhibit 3 which was brief and reads thus:

“I admit to the charges levelled against me that I assaulted and killed Nyarai Moyo. I struck her once with the metal shock absorber on her head which is what I think caused her death.”

It should be noted that his two defences, which appear in his Defence Outline, were not included in his confirmed statement.

The defences were:

(a) Provocation; and

(b) Self defence….,.

Exhibit 4 was a post mortem report by Doctor Maurice Gonzales who examined the remains of the deceased.

He observed a 17cm injury on the left parietal area, a periorbital haematoma, and bruises on the upper and lower limbs.

The doctor opined that death was due to brain damage; a depressed skull fracture following an assault.

The fifth and last exhibit was a shock absorber used by the accused to assault the deceased which is 65cm long and weighs 5.490kg. The court noted that the shock absorber was from a heavy vehicle.

The evidence of 5 of the 7 witnesses listed on the State Outline was admitted by consent of the defence counsel as it appears in the State Outline in terms of the provisions of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Viva voce evidence from two witnesses was that the accused was their neighbour who has been in the area for about one and a half years. They said the deceased was his wife. Sadly, the couple used to have frequent fights.

On the fateful day, they had one of those fights.

They heard a sound of a loud bang. On going to investigate, it was discovered that the accused was smashing his car. The deceased had gone into the car and appeared to have locked herself there.

The accused was seen assaulting the deceased, hitting her indiscriminately with some object which they later learnt was a shock absorber.

They called the police, who, when they arrived and knocked at the accused's door, the accused would not allow them in. The police had to tell him that they were armed with a firearm and would break the door and enter.

The accused then opened the door. When asked why he was beating up his wife, the accused did not say anything until the police took him and his wife away.

The accused never told the police that he was provoked by the fact that the deceased had confessed that she had been talking to one Lloyd, who was her boyfriend, on the phone.

Neither did he mention to the police that the deceased had got hold of his private parts and he was defending himself.

These defences were never even mentioned to the officer who recorded his extra curial statement and the magistrate who confirmed the statement.

There is uncontroverted evidence that he was properly warned and cautioned and he made the statement freely and voluntarily.

The accused's explanation was that when asked to explain why he was beating up his wife he did not find it necessary to mention these defences as he had decided to raise them at the police station when making his statement.

When that stage came, he decided to mention those defences in court.

When he was before a magistrate for confirmation of the statement, he made up his mind to raise the defences at this trial in the High Court.

The accused's explanation does not need any serious consideration as it is patently false.

The defences are hopeless after-thoughts and are hereby rejected.

The deceased never made any confession about having an affair with one Lloyd. Neither did she catch hold of his manhood.

The accused perpetrated a prolonged assault on the deceased using a wet stick, which he called a switch, all over the body. He struck her with exhibit 5, the shock absorber, on the head - a very vulnerable part of a human body.

The accused was a deliberate liar who is not worth to be believed.

The defence counsel fairly conceded, in my view, that, in the light of the evidence that is before this court, the accused was guilty of murder with constructive intent and did not persist with the limited plea of culpable homicide.

In the result, this court finds the accused guilty of murder with constructive intent.

Sentence

All that needed to be said on the accused's behalf was well presented by the accused's legal representative. In particular, the accused had spent one (1) year pre-trial incarceration.

On the other hand, the turning of family homes into war zones cannot be countenanced moreso where human life is lost in the process. A clear and loud message must be sent out there, that, perpetrators of such crimes will be adequately punished.

The accused perpetrated a vicious and prolonged assault on the deceased who was defenceless. Such gratuitous violence will never be tolerated.

This court always guards jealously the sanctity of human life. The accused would have been sentenced to no less than 19 years had it not been for the fact that he has spent one (1) year pretrial imprisonment through no fault of his.

It had been submitted that his in-laws had demanded cattle and he paid compensation of six (6) head of cattle. His uncle said that a longa manu delivery of eight (8) cattle was made – two (2) were sold by the inlaws and six (6) were still at the home of the accused's uncle.

The compensation in fact amounted to extortion. It was not a willing one. I treat it as no compensation.

In the result, the justice of this case will be met by a sentence of 18 years imprisonment.

HB69-15 : THE STATE vs NDABEZINHLE NCUBE
Ruled By: MAKONESE J

The accused, aged 36, has been arraigned in this court on a charge of murder.

The State alleges, that, on 29 April 2014, and at Mfunda Village 4, Nkayi, the accused did wrongfully, unlawfully, and intentionally kill and murder Thobekani Masuku, a female adult aged 21 years at the time of her death.

The accused pleaded not guilty to the charge and tendered a plea of guilty on the lessor charge of culpable homicide.

The State did not accept the plea to the lessor charge, and the matter proceeded to a trial.

The State Outline (Exhibit 1) was tendered into the record. In brief, the State alleges, that, the deceased was aged 21 years at the time she met her death. The accused was aged 35 years at the time of the commission of the offence.

The accused and the deceased were lovers and resided in the same village.

The deceased was customarily married to one Musa Mbano who resided and worked in South Africa at the relevant time.

On 29 April 2014, at around 1900 hours, the deceased was walking home with Irvin Tshuma, a nine year old juvenile, when she met the accused. The accused was armed with an axe, knobkerrie, and a piece of rolled wire.

The accused and the deceased then began to discuss their relationship.

An argument ensued and degenerated into a verbal exchange. The accused struck the deceased several times on the neck, head, and the back. The deceased fell to the ground and died on the spot due to the injuries sustained in the attack. The deceased fled the scene.

On 5 May 2014, the accused was arrested at Mkobongwe Village at Zhombe in connection with the murder.

The defence tendered a Defence Outline (Exhibit 2).

It is necessary to set out the contents of the accused's Defence Outline, which is in the following terms:

“Accused's Defence Outline

Accused pleads not guilty to the charge of murder preferred against him.

1. He will state that he was happily married to his wife with whom he had children.

2. He was tempted and he fell into a love relationship with the deceased. Deceased told him that she was single and never disclosed to him that she was married. He asked deceased's aunt who confirmed that she was single.

3. Because of the relationship with deceased, accused's marriage broke and his wife left together with the children.

4. Deceased was not feeling well as she appeared to be suffering from cancer. She became seriously ill that accused believed she would die (sic).

5. Because he loved her, accused sold all his belongings consisting of three thousand bricks, 8 zinc sheets, 2 bicycles, a wheelbarrow, a bed, 4 goats, all the maize in the granary, all chickens, and, lastly, a scotch-cart.

6. All the money he realized from the sale of his belongings he used it for the treatment of the deceased having agreed with her that they would get married.

7. When deceased had recovered, her husband returned from South Africa where he had been and she began to be evasive.

8. He met her on the fateful day and they began to discuss about their affair and intended marriage. He also asked her what she would do since she was pregnant.

9. Deceased answered him rudely saying she was no longer interested in the affair and that she did not know whether she was pregnant or not and also that she was pregnant then she would give birth and give the accused his child.

10. Accused, who had destroyed his family and had sold all his belongings, was extremely provoked to the extent of losing all his senses; accused, in a moment of rage, he struck the deceased with an axe which he had, and the deceased died as a result.

11. He admits that he cause the death of the deceased but avers that he acted out of extreme provocation.

Wherefore, he prays that he be found not guilty and that he be acquitted of the charge of murder and he offers a plea of guilty to the lessor charge of culpable homicide.”

The State produced the accused's confirmed warned and cautioned statement, with the consent of the defence.

The warned and cautioned statement is marked Exhibit 3 and was duly confirmed by a magistrate at Nkayi on 22 May 2014.

The warned and cautioned statement is in the following terms:

“I, Ndabezinhle Ncube, plead guilty to the charge of murdering Thobekani Masuku.

My first reason being, that, when we fell in love, she lied to me that she was not married but she had a child. To my surprise, when Musa Mbano, her ex-husband, returned from South Africa, they reconciled and when I asked her about the relationship she told me not to worry as there was no such relationship.

I waited patiently for a week, but there was no change, since she later on told me that she would bear my child and give it to me since she was four months pregnant.

At that moment, the devil worked upon me and I chopped her thrice on the neck with an axe.

I then left the spot to go and hang myself. I threw the axe which I had used into the Gweru River.

The other reason why I murdered Thobekani Masuku is that I had a homestead, a wife, and three children, and, as a result of my relationship with Thobekani Masuku, my homestead collapsed. Thobekani Masuku and I had agreed to marry each other but she later on changed her mind.”

The Sstate then produced an affidavit by Constable Sehliselo Khumalo confirming, that, the deponent identified the body of the deceased as that of the person murdered by the accused.

Constable Sehliselo Khumalo conveyed the remains of the deceased to United Bulawayo Hospitals for a post mortem examination. The affidavit was marked Exhibit 4.

The last documentary Exhibit 5, is the post-mortem report.

Dr S. Pesanai is a qualified medical practitioner attached to United Bulawayo Hospitals. On 2 May 2014, he examined the remains of the deceased and compiled his findings in the Post Mortem Report number 314/313/2014.

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

1. Spinal injury.

2. Multiple chop wounds.

3. Homicide.

On external examination, the pathologist made the following observations:

Chop wounds involving:

1. Right ear (5x1)cm.

2. Right neck (9x2x4)cm.

3. Right chin (2x1)cm.

4. Right neck (9x5)cm.

6. Right above the shoulder blades.

7. Back of neck (3x2)cm.

8. Occipital region (9x5)cm.

9. Left above shoulder (1x1)cm.

10. Below left ear (5x3)cm.

11. Left neck (4x2)cm.

12. Cutting in the throat and oesophagus (9x11)cm.

13. Fracture right jaw.

14. Fractured occipital bone.

The report also reflects, that, the deceased was carrying a male foetus weighing 180 grams.

The State applied for the evidence of the following witnesses to be admitted by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]; namely, Phumulani Masuku, Jackson Dzosa, Zerbert Dube, Ngonidzashe Chibanda, Dr S. Pesanai.

The defence consented to the admission of the evidence of these witnesses as it appears in the outline of the State case.

The State led oral testimony from Irvine Tshuma, a male juvenile aged nine (9) years.

His evidence was to the effect, that, on the fateful day, he was in the company of his aunt, the deceased. They were coming from the clinic. He was not feeling well on that day. They were walking towards their homestead in the evening hours. They met the accused. The deceased advised the accused to stop coming to her homestead as he not was supposed to be seen there. The accused complained that the deceased was neglecting him and asked how she (deceased) would feel if he dumped her. The witness said that a misunderstanding ensued resulting in the accused striking the deceased with an axe on the back of the head.

The witness went further to explain that he observed the accused striking the deceased three times.

He saw the deceased fall to the ground. He ran away in terror as the accused continued to strike the deceased.

The young juvenile said he feared for his life. He confirmed that he knew the accused and the deceased to be lovers.

The court accepts the evidence of this witness as consistent, credible, and worthy of belief. The witness was composed and appeared to have no hesitation in narrating what he had observed.

It is noted by this court, that, the evidence of the witness corroborates what the accused himself stated in his evidence in chief, namely, the following:

(1) That, when the accused and the deceased met they spoke about the state of their relationship.

(2) That, the accused complained to the deceased that she was evading him.

(3) That, the accused struck the deceased at the back of the head and neck on at least three occasions using an axe.

The second witness to take the witness stand was Nomsa Masuku.

She testified, that, she is employed at Dombodema High School, Plumtree, as a Laboratory Technician. She spent most of her time at the school where she resides and occasionally visits her homestead in Nkayi. The deceased was her sister. She was not known to the accused whom she only met on one single occasion.

She confirmed, that, the deceased was customarily married to one Musa Mbano and one minor child was born out of that union.

At the time of her death, the deceased was four months pregnant. She did not know whether the accused was responsible for the pregnancy.

She testified, that, she only learnt about the relationship between the accused and the deceased after the death of the deceased when she heard villagers talking about it.

The witness did not exhibit any signs of any malice or hatred towards the accused. She gave her evidence well. She is worthy of belief. There was no tinge of exaggeration in her evidence. The court accepts her evidence as being truthful and credible.

The State closed its case after leading evidence from the two witnesses.

The accused gave evidence in support of his case.

He gave a very detailed narration of the background to the affair with the deceased. The accused essentially testified that he had left his first wife, collapsed his marriage, sold all his personal belongings in the hope and belief that he would settle down and marry the deceased.

He told the court that everything changed when the deceased's husband, Musa Mbano, returned from South Africa where he was based.

The accused stated, that, the deceased had become evasive about the future of their relationship. He said he was shattered by the realization, that, the deceased appeared to be sidelining him. He said he had given the deceased some time to consider her stance but the deceased had seemed to move closer to Musa Mbano.

The accused was free to give the court all the details regarding his relationship with the deceased, but, when he came to the events of the fateful day that led to the death of the deceased, he became withdrawn.

The accused appeared to be very uncomfortable and reluctant to explain why and how he had delivered the fatal blows upon the deceased using the axe.

When he was pressed, under cross-examination, to explain how he had struck the deceased, he informed the court that he was overpowered by satanic forces.

The accused said that the deceased had “left him with no choice.”

Asked to explain what he meant by this, the accused failed to clearly articulate what he meant.

By his own admission, the accused struck the deceased at least three times using the axe. He confirmed that he struck the deceased at the back of the head and neck. He however failed to adequately explain why the post mortem report indicated that the deceased had suffered at least twelve chops wounds on the upper part of her body and why her throat was cut.

The accused proffered the defence of provocation, that, he was angered by the deceased and that he had acted out of anger and lost self-control.

The accused confessed, that, he threw the murder weapon, the axe, into the Gweru River and that immediately after committing the offence he had fled the scene.

The accused was not a consistent witness. He appeared to be withholding all the details about the matter, more particularly why he struck the deceased.

The accused did not admit that he had intended to kill the deceased. He stuck to his version that he was overpowered by Satan.

The accused did not impress as an honest witness.

In his warned and cautioned statement, Exhibit 3, the accused alleges, that, he had waited patiently for a week but there was no change in their relationship.

It is clear, that, the accused had ample opportunity to reflect on his relationship. The accused's relationship with Musa Mbano was not a sudden discovery.

He knew about the relationship and was aware that the deceased had a child aged two years with Musa Mbano.

It is our view, that, the submission by State counsel, that, the accused developed the attitude, that, if he could not have the deceased person, then none else was to have her.

The accused must have decided to kill the deceased when he realized that he had lost her to Musa Mbano.

The accused stated, that, he realized that the deceased was slipping out of his grip when the following events occurred:

(a) When the deceased joined Musa Mbano to go and obtain a Birth Certificate at Nkayi.

(b) When the deceased became evasive about their future.

(c) When he saw a love message from Musa Mbano on the deceased's mobile phone.

The court was advised by the accused, that, just moments before he attacked the deceased, she had told him, that, if she was pregnant with his child, he would hand over the baby to the accused after giving birth.

The accused stated, that, these words were the ultimate trigger that caused him to act in an irrational manner. He said he lost his senses.

The law on the defence of provocation is reasonably well traversed in our jurisdiction, and, section 239(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

“(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that -

(a) He or she did have the intention or realization referred to in section forty seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances to lose his or her self-control; the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided for in section two hundred and thirty-eight.”

In Robert Mugwanda v The State SC19-02, at the court held as follows:

“…,. For a trial court to return a verdict of murder with actual intent it must be satisfied, beyond reasonable doubt, that:

(a) Either the accused desired to bring about the death of the victim and succeeded in completing his purpose; or

(b) While pursuing another objective, foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.”

See also Levison Sithole v The State SC16-07.

In casu, the injuries sustained by the deceased, as reflected in the post-mortem report indicate that the deceased sustained several chop wounds. It is self-evident, that, the accused struck the deceased repeatedly and with excessive force in the neck, head, and even cut the deceased's throat in the process.

The State, in our view, proved, beyond any reasonable doubt, that, the accused desired to bring about the death of the deceased.

This is not one of those cases where one single blow is delivered at the spur of the moment.

The accused subjectively foresaw death as a substantially certain result.

The defence of provocation is not available to the accused in the circumstances of this matter.

The provocation was not sufficient to make a reasonable man in the accused's position and circumstances to lose self control (to that degree).

The number of chop wounds reflected in the postmortem report are not consistent with sudden anger and loss of self-control. The injuries are consistent with someone desiring to bring about the death of another.

We are satisfied, therefore that the State has proved its case beyond a reasonable doubt and the accused is found guilty of murder with actual intent....,.

This is a classical case of gender based violence.

HMT03-20 : THE STATE vs BERNARD MUCHADEI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

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

The brief allegations are, that, the accused struck the deceased, his mother, with a stone on 9 March 2018 at Matereke Village, Chief Zimunya, Arda, Odzi. It is the State's contention, that, when the accused struck his mother, Constance Muchadei, he intended to kill her or realised 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 Constance Muchadei died.

The accused pleaded not guilty to the charge.

The accused's defence was basically a denial of the charges. He stood by his confirmed warned and cautioned statement which was tendered as exhibit 2 by consent. His stance was that he found the deceased already injured and lying on the floor in the house in which where many stones which showed the deceased had been struck by stones and sustained injuries on the forehead.

The accused denied even having an altercation with the deceased.

He pointed out, that, on the day in question, there were many people at the homestead drinking beer as his mother, the deceased, was in the habit of selling traditional brew.

The accused was the only witness who testified in the defence case while the State relied on 14 witnesses, two (2) of whom gave oral evidence while the other 12's evidence, which was not contentious, was formerly admitted as it appears on the summary of the State case.

Rutendo Matereke gave oral evidence.

She narrated events of the fateful day, as per her observation from the time she arrived at the scene. The witness, a member of the neighbourhood watch committee, told the court, that, upon her arrival at the scene, she received a report, that, the accused had assaulted the deceased with a stone. She entered the room and found the deceased lying unconscious on the floor. She also observed a cut on the deceased's forehead from which the deceased was bleeding.

She, with the help of others, carried the deceased outside whereupon the deceased regained consciousness.

According to the witness, the deceased spoke words to the effect, that, Benard had hurt her and was supposed to finish her off. She stated the deceased said:

“Benard why have you killed me? Come and finish me off.”

The witness told the court, that, at that stage, the accused picked another stone intending to strike the deceased and was restrained by other people.

The witness identified the stone which she recovered from the scene as the murder weapon.

She then arrested the accused, and, as she was taking the accused to the police station, she was interrupted by one Timothy Mutore who interfered insisting it was a domestic matter to be resolved at home.

The accused's mother, the deceased, who was being wheeled in a wheel barrow by Madeline Javason was then wheeled back home instead of proceeding to hospital.

The witness evidence was straight forward. She maintained her version even under cross-examination. It was clear she did not seek to exaggerate her testimony. She got to the scene after the deceased had been struck and the report she received, that the accused had struck his mother, tallied with the deceased's statement when she regained consciousness. The witness impressed the court as an honest witness.

Isaac Muchadei, a juvenile 14 year old, also gave oral evidence.

His evidence was to the effect, that, on the day in question, he was at home not having attended school at the deceased's behest. The witness told the court, that, the accused and the deceased had a misunderstanding over failure of the witness and other children to go to school in the morning. The altercation ended and people, including the accused, drank beer. Later, around 5:00pm a misunderstanding again arose between the accused and the deceased; when the deceased sought refuge inside, the accused pursued her and struck the deceased on the forehead.

The witness told the court, that, the stone used to strike the deceased was the only stone besides the deceased in the house and other stones were just outside in the yard.

The witness observed, that, the deceased was hurt on the forehead and was bleeding.

The witness's evidence tallied on all material aspects with Rutendo Matereke.

There was only one stone indoors and that was indicated as the murder weapon.

The witness evidence, that he observed the accused pursue the deceased while the accused was armed with a stone, exhibit 5, when viewed in conjunction with the fact, that, the accused and the deceased had a misunderstanding, and that the deceased sustained injuries on the forehead, gives a clear picture of what transpired.

The witness stood his ground even during cross examination.

He was clear, at the time of delivery of the fatal blow, there were not many people gathered. The accused pursued the deceased. The stone was recovered from beside the deceased indoors.

We find no reason why the witness would have given false evidence against the accused protecting the actual perpetrator.

Generally, the witness gave a substantial and credible narration of events of the fateful day regard being had to his age.

Worth noting is the fact, that, the witness, Isaac Muchadei's version tallied with Timothy Mutore's evidence which was formerly admitted in terms of the law.

The evidence of Timothy Mutore was to the effect, that, around 5:00pm the accused exchanged harsh words with the deceased. The witness observed the accused entering the house in which the deceased was and shortly after heard the deceased crying accusing the accused of stoning her. The witness rushed to the house and observed the deceased lying on the floor whilst holding her forehead from which she was bleeding.

Also formerly admitted was evidence of an 11 year old grandchild of the deceased, Maxwell Muchadei.

His evidence was essentially to the effect, that, the accused had an altercation with the deceased. At around 5:00pm the witness invited Isaac Muchadei to the scene. He witnessed the accused stone the deceased on the forehead from which she bled. The witness also saw the stone beside the deceased.

The admitted evidence corroborated the oral evidence of the two witnesses who testified, especially on the issue of altercation between the deceased and the accused and also the murder weapon and the striking of the deceased itself.

Also formerly admitted was the evidence of Madeline Javason which confirmed the deceased was injured on the forehead.

The witness, before being interrupted by one Timothy Mutore, ferried the injured deceased towards Odzi Clinic in a wheel burrow.

It is apparent the admitted evidence of Kuziva Zinyundu is that he ferried the now deceased in an ambulance from Odzi Clinic to Mutare Provincial Hospital.

At Mutare Provincial Hospital, Mufaro Mhungu admitted the deceased who passed on during admission process, following which Doctor Domonic Khulu examined the remains and compiled a post mortem report, exhibit 1, concluding that cause of death was head injury.

The police details, namely, Itai Chawatama and Artwell Mangwindime, who attended the scene, recorded statements and drew a sketch plan - their evidence was formerly admitted.

Also formerly admitted is the evidence of Liberty Mukwavaya who measured the stone and compiled a certificate of weight, exhibit 4, showing the stone weighed 2,080kg and had a circumference of 43cm.

Further adduced in evidence, by consent, were the following exhibits:

(i) The post-mortem report, exhibit 1.

(ii) The accused's confirmed warned and cautioned statement, exhibit 2.

(iii) Sketch plan, exhibit 3.

(iv) Certificate of weight, exhibit 4.

(v) The stone, exhibit 5.

The accused, in turn, testified in the defence case.

The accused insisted, that, he only got to the scene after the deceased had been struck while he was answering to the call of nature.

He could however not dispute, that, he was the only person who was with the deceased at the time the deceased was struck.

Absurdly, the accused was the only witness who observed more than one stone in the house next to the deceased.

Also, he seemed to be the only witness from those who were at the scene (Isaac Muchadei and Timothy Mutore) who did not know that he had an altercation with the deceased.

We observed and viewed the accused as a dishonest witness who was raising dust so as to mislead the court.

In the face of clear evidence that the stone recovered from the kitchen hut was the one used to strike the deceased, the accused sought to unconvincingly introduce existence of other stones so as to shift liability.

The other patrons, if they were still at the deceased's home, would have been well known to the State witnesses, and the neighbourhood watch member, Rutendo Matereke, would have taken them in for questioning if it was not clear.

Only the accused had an altercation with the deceased, and only the accused struck the deceased as evidenced by not only the deceased's utterances, which amount more to a dying declaration, but by the juvenile witnesses who were at the homestead.

The accused impressed the court as an incredible man with no conscience and heart for the truth.

He was evasive and denied even the obvious, that, the deceased died as a result of head injuries caused by being struck with a stone tendered as exhibit 5 in court.

The accused is simply foreign to truth and thus unreliable.

This unreliable personality was also envisaged in closing submissions where it is suggested, that, the accused be found guilty of culpable homicide because there was an altercation between him and his mother and that they were in a drunken state thus the accused negligently caused the death of his mother.

The accused, throughout the proceedings, as evidenced by the contradictions, inconsistencies, and change of stance in his defence, sought to raise smoke so as to mislead the court.

The accused simply has no defence.

We are alive to the fact, that, the accused has no obligation to prove his innocence; however, the accused's story has to be reasonably possibly true.

In this case, the accused's story of having gone to the lavatory and coming back after the deceased had been struck is not only unbelievable but false.

A lot of questions come in, given the eye witness evidence - inclusive of Timothy Mutore, the accused's friend. What further exposes the accused's version is that he could not have guessed his mother was lying unconscious indoors if the injury had been caused during his absence.

The accused is facing a charge of murder which requires both the actus reas and mens rea to be proved beyond reasonable doubt.

A reading of section 47(1) of the Criminal Law (Codification and Reform) Act defines murder with actual intention and murder with constructive intention.

It is apparent when there is no clear evidence of one setting out with an aim to kill, and proceeding to kill, then, the second stage of murder with constructive intention has to be considered.

This is murder emanating from the realisation or possibility of risk of death, but, despite the realization, proceed with conduct resulting in death.

The law is clear, that, where there is no actual intention, legal intention can be inferred from the circumstances of the matter, with factors such as the nature of blow, weapon used, and the body parts to which the blow is directed among others falling into consideration.

Where the State has discharged the required onus of proof, then, the accused ought to be convicted. The reverse is true, that, where the State has failed to prove the guilt of the accused beyond reasonable doubt, then, the accused ought to be acquitted.

In this case, therefore, upon considering the totality of the evidence adduced, the issue to be determined is whether or not the accused unlawfully and intentionally killed the deceased.

It is clear from the circumstances of the matter there was no plan by the accused to kill the deceased which the accused executed.

He may, from the evidence, escape liability for murder with actual intention, but, certainly, going by the nature of weapon used, a stone weighing 2,080kg, aimed at the head, one cannot fail to realize the risk of death occurring.

The accused and the deceased had both partaken the traditional beer, but, there is no evidence placed before the court to show that the accused did not know what he was doing.

In any event, if he was intoxicated, voluntary intoxication is not a defence: see S v Musina 2010 (2) ZLR 498 and also section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

In this case, events shortly before striking and after striking do not show, that, the accused was not capable of having foresight, that, by striking his mother with a big stone in the head there was real risk and possibility of death occurring. Despite such realisation, the accused proceeded with his conduct and struck the deceased on the head resulting in the fatal injuries.

The accused is accordingly found guilty of murder with constructive intention as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentence

In our endeavour to reach at an appropriate sentence, we have considered all mitigatory and aggravatory factors submitted by counsel.

You are a first offender who has been awaiting the finalisation of the matter since 9 March 2018 when the offence was committed.

Although you were out of custody for the longer part of the waiting period, the court will take note of the trauma and anxiety that goes with that difficult period of suspense.

You are a family man with a dependant juvenile child. You had partaken of alcohol on the day in question.

That is all that can be said in mitigation.

You however stand convicted of a serious murder charge emanating from domestic violence.

The State counsel has correctly pointed out the societal expectations of children having a duty to exercise self-restraint and respect parents.

In this case, life was needlessly lost.

You struck your own mother on the head with a stone weighing more than 2kgs. You exhibited a high degree of cruelity and lack of respect for human life. From the time of commission of the offence, you were devious as evidenced by desire to have the matter resolved at home and not reported to the police, as you stopped the member of the neighbourhood watch from taking you to the police and taking your mother to hospital.

What further aggravates the offence is the fact that you do not regret commission of the offence at all. There are no signs of remorse at all.

You, in your defence and closing submissions, admitted to culpable homicide saying it happened when you were intoxicated, but, in mitigation, despite direct questions, you did not seem moved at all by the loss of life of your mother at your hands.

Further, in aggravation, is the fact that you have, throughout the proceedings, been very economical with the truth.

The murder was callous and savage.

Society abhors the use of violence, and courts have to weigh in and pass appropriate sentences in order to deter like-minded people. The inhuman treatment you subjected the deceased to has to be visited with an appropriate sentence.

The offence you stand convicted of is deserving of a custodial sentence. People like you, who are not perturbed by loss of life, have to be removed from circulation for you pose a danger to society.

You are sentenced as follows:

20 years imprisonment.

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU
Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

This matter proceeded on the basis of a Statement of Agreed Facts after the accused, who was facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], pleaded guilty to the charge of contravening section 49 of the same Act relating to the charge of culpable homicide.

This is a bad case of domestic violence which resulted in a fatality wherein the thirty-three year old wife died at the vicious hands of her thirty-six year old husband.

The brief and agreed facts are as follows;

Both the now deceased and the accused were residing in Nyamayevhu Village, Chief Nyajena, Masvingo and were wife and husband respectively. In fact, the accused was in a polygamous marriage with the now deceased, Molline Ellias, as the senior wife and one Alice Ellias as the junior wife. Each of the wives has three minor children born out of the marriage. They all resided at the same homestead.

On 15 July 2018, the accused arrived home from a beer drink. He was confronted by the now deceased over the proceeds of a bovine the accused had sold and squandered the money. The accused would have none of that inquiry and resorted to brutal violence.

The accused proceeded to drag the now deceased from home.

At some place, away from the prying eyes of other family members, the accused brutally assaulted the now deceased with switches. As a result, the now deceased sustained bruises on lower limbs and face, haematoma on left temporal area, and bled from the left ear. Her neck was hypermobile as a result of assault.

The now deceased collapsed and the accused called the junior wife, Allice Ellias, to ferry the now deceased back home.

At home, the accused tried to resuscitate the now deceased with the help of Allice Ellias - to no avail.

The now deceased passed on that same night and the accused fled from home only to be arrested some days after.

As per the post mortem report, the now deceased died from the injuries inflicted upon her resulting in the head injury and fracture of the cervical spine.

Indeed, this is a borderline case between the offence of murder with constructive intent and that of culpable homicide.

In assessing the appropriate sentence, we have considered submissions made by both counsel.

In mitigation, we have taken into account the accused's personal circumstances. As already pointed out, the accused had two wives and six minor children. As he is unemployed, the family survives on his manual labour and has no meaningful savings. As at now, he only owns one donkey and a scotch cart.
His family would be greatly prejudiced as a result of his incarceration.

We were advised that the accused suffers from chronic pain arising from a hip problem where he was injured while employed by Triangle Limited. The severity of this injury could not be ascertained as no further medical details were availed.

It is in the accused's favour that he has no previous criminal record. We are therefore inclined to exercise some leniency with the hope that he would reform and desist from further crime.

This matter has been finalised in a very short time simply because the accused decided to accept his wrongful conduct. A plea of guilty should therefore be seriously considered as a mitigatory factor.

This matter had been set for two days but was finalised within a few minutes. The witnesses who were present were excused and saved the trauma of facing the accused while testifying as most of them are the accused's relatives; like his brother, son, and second wife. The scarce State resources have also not been wasted.

For all these reasons, we are obliged to reduce whatever sentence we are inclined to impose and/or to suspend part of the overall sentence to give effect to the plea of guilty.

The accused has suffered from a pre-trial incarceration of six months and has not been granted bail pending trial.

While in custody, the now deceased's relatives caused the accused's relatives to surrender some of the accused's assets as compensation. These included nine cattle, twelve goats, four bales of cotton, two (2) tonnes of maize and R5,000.

While this can never be compared to the loss of life, we cannot close our eyes to the fact that the accused has somehow atoned for his criminal conduct.

Indeed, the accused, through counsel, profusely apologised for his conduct.

It is worth noting, that, the accused shall forever live with the stigma that he is responsible for the demise of his wife. Worse still, he will have to explain this also to the children he had with the now deceased.

It is however unfortunate and very saddening that many couples are losing their lives at the hands of their spouses who are expected not only to love them but to protect them. The sanctity of human life can never be over-emphasised and human blood is sacred.

Another worrying issue is that such cases are very prevalent hence the need for deterrent sentences if we are to tame this tide.

Domestic violence should not be condoned at all.

This explains why the State has specifically enacted the Domestic Violence Act [Chapter 5:16] to specifically address this scourge.

The dispute in this matter was minor and could have been amicably resolved. In fact, the accused is the one who was at fault as he had squandered the money realized from disposal of a family asset. The now deceased, being a responsible wife and mother, was entitled to question the accused and rebuke him for his selfish conduct. The now deceased should not therefore have been battered and lose her life for this.

It is aggravating that the assault itself was indiscriminate and brutal.

The now deceased was injured on the head, limbs, and her cervical spine was broken. Severe force was therefore exerted against this defenceless housewife. The accused's degree of negligence is clearly very high. This elevates the accused's moral blameworthiness.

Despite the mitigatory factors alluded to, the accused deserves a fairly lengthy custodial sentence.

In the result, the accused is sentenced as follows;

“Ten years imprisonment of which two years imprisonment is suspended for five years on condition the accused does not within that period commit any offence involving the use of violence upon the person of another and for which the accused is sentenced to a term of imprisonment without the option of a fine.

The effective sentence is eight years imprisonment.”

HMT01-20 : STATE vs GEORGE PFUMBWA
Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and RAJA

The accused was 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] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

HMT10-19 : THE STATE vs LAMECK MANYANGA
Ruled By: MWAYERA J and ASSESSORS: CHAGONDA and SANA

Precious human life was unnecessarily lost in a horrific manner, in a domestic violence related crime of passion.

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

The allegations levelled against him being, that, on 9 December 2014, at Inyati Mine Compound, the accused unlawfully and intentionally caused the death of Tendai Mufaranyuri by striking her with a hoe once on the head and burnt the body with fire, with intent to kill her or realizing that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct, despite the risk or possibility, resulting in injury from which Tendai Mufaranyuri died.

The brief facts forming the basis of the allegations are that on the fateful day, the accused person had an altercation with the deceased, his live-in girlfriend for a period of about two (2) years.

On the fateful day, the accused struck the deceased with a hoe on the head as the deceased lay on the bed. The accused set the bedroom ablaze and he fled to the mountains where he stayed in a cave from 9 December 2014 until 2 October 2017 when he was arrested for the murder allegations.

The accused's defence was basically, that, upon his return from work, the deceased insulted him accusing him of being stupid, surviving on piece jobs, and, thus, his future was bleak.

The accused was also insulted by the deceased, who labelled his mother a witch and was further insulted by the deceased's refusal to be intimate with him.

The accused went away after the insults so as to cool off.

However, the insults kept hounding him to the extent of causing him to abscond and leave his guard duty at his place of employment. According to the accused, upon return, he requested the deceased to be intimate with him and she rebuffed him repeating the earlier insults.

The accused, in a fit of anger, then armed himself with a metal hoe handle and blade and struck the deceased on the head.

The accused observed, that, the deceased died instantly as a result of the blow, and, in panic mode, decided to take away his own life and thus left a suicide note at the homestead.

He, further, in a bid to conceal evidence, set alight the bedroom house in which the deceased lay.

Upon reflecting, while in the mountains, the accused decided not to take his life and was eventually arrested about three (3) years later.

The accused, in his defence, sought to raise and rely on the defence of provocation and pointed out that he was negligent and had no intention to kill the deceased proffering a plea of guilty to culpable homicide.

The State did not accept such a plea and thus the trial proceeded.

The issues that fall for determination are:

(1) Whether or not the accused had the requisite intention to kill the deceased.

(2) Whether or not the alleged insults and denial to sexual intimacy afforded the accused the defence of provocation thus occasioning a defence to the charge of murder reducing it to culpable homicide.

The State adduced evidence from 15 witnesses, 3 of whom gave oral evidence and 12
of whose evidence was not contentious and on common cause aspects was formerly admitted as evidence in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Post mortem examination by Dr Roberto Trecu and Dr Ivian Betoncourt's affidavit of evidence was tendered as exhibit 1 by consent.

The doctors observed the remains and concluded, that, the cause of death was carbonisation. The doctors further observed, that, there was head trauma occasioned on the head.

Further tendered as exhibit 2 in evidence was the accused's confirmed warned and cautioned statement.

The statement was basically to the effect, that, the accused assaulted the deceased following insults on his person and refusal by the deceased to be intimate with him.

The sketch plan depicting the lay out of the scene of crime as indicated by the witness, Tamari Mufaranyuri, and as observed by the recording detail, one Detective Assistant Inspector Zifungo, was also produced.

The witness, Tamari Mufuranyuri, testified at the age of 15. At the time of the alleged offence, she was 11.

The witness regarded the accused as a father as he was her mother's boyfriend. She pointed out that all along the accused and the deceased would get along well, but, as from 1-8 December 2014, the two had a heated argument in which the deceased was accusing the accused of squandering his salary.

On the fateful day, the witness went to put up for the night at the mother's friend's house. In the morning, she went back to her mother's homestead, and, as routine, swept the campus. It was during that morning that the cousin, Leeroy Munongwa, who had got inside to get some body lotion or oil alerted her that the bedroom was burnt.

The witness and Leeroy Munongwa, upon checking and not finding the deceased, alerted a neighbour, Tawanda Chieza, whose evidence was admitted.

The witness then entered the bedroom in which everything was burnt and the charred remains of the deceased were recovered from the position where the bed lay before being set ablaze.

The witness's evidence was straight forward. She did not witness the fraca but observed the bedroom was burnt. She later learnt the charred remains were the body of her mother. The witness gave her evidence well.

The other witness who gave oral evidence, Kelvin Taurai Temberere's evidence was basically, that, on the day in question, he met the accused with whom they exchanged greetings. The accused advised him that he wanted to shift and move from staying with the deceased with whom he cohabitated. The witness did not ascertain why. According to the witness, the accused and the deceased were co-habiting and this was common knowledge in the locality.

Nothing arises from the witness's straight forward testimony.

Dzokai Mafaranyuri, a sister to the deceased, confirmed that the accused and the deceased cohabitated for about two (2) years. The witness confirmed what the other witnesses stated, that, the two had a cordial relationship. She, however, pointed out that sometime before the demise of the deceased the couple was having problems about issues of salary.

This tallied with Tamari Mafaranyuri's evidence, that, on the day in question, she had heard the mother complain about the accused squandering his salary.

Dzokai Mafaranyuri told the court, that, the issue of the salary was a source of argument as the accused would go to work but his father would collect his salary.

The witness did not witness the misunderstanding which culminated in the death of the deceased.

The accused maintained he was insulted and denied sexual intimacy, and that he assaulted the deceased negligently causing her death.

From the totality of the evidence, it is common cause, that, the accused and the deceased cohabitated for a period of about two (2) years prior to the fateful day. Further, it is not in dispute, that, the accused returned home from his duty post on the night in question. It is also apparent the accused had a misunderstanding with the deceased which culminated in him striking the deceased on the head and also burning the deceased as he set the bedroom on fire. It is not in dispute that the accused left a purported suicide note to the effect that he had killed the deceased and would proceed to take his own life.

It is also common cause, that, the accused set on fire the bedroom in which the deceased was.

Further, it is common cause the accused did not commit suicide as he sought sanctuary in the mountains until he was arrested about three (3) years later.

It is not in dispute, that, the deceased died as a result of carbonisation and that the deceased had sustained head injuries.

Also common cause is the fact that the accused caused the demise of the deceased.

What the court is to consider is the degree of liability given the defence of provocation raised by the accused.

The defence of provocation, raised by the accused, is provided for in section 239(a)(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which states:

“If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be on essential elements of the crime of murder if done or omitted as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide, if, as a result of provocation;

(a) He or she does not have the intention or realisation referred to in section forty-seven;

(b) He or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self control; the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self control.

(2) For avoidance of doubt, it is declared, that, if a court finds that a person accused of murder was provoked but that;

(a) He or she did have the intention or realisation referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control; the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided for in section two hundred and thirty eight.”

In the circumstances of this case, the accused alleges he was insulted by the deceased who labelled him “stupid, surviving on piece jobs, and that his future was bleak. Further, that his mother was a witch.”

The deceased further refused to have sexual intercourse with the accused.

According to the accused, this angered him, but, he managed to temporarily restrain himself and went away to cool off.

While at work at night, the accused failed to cool off as the insults hounded him and he decided to go back to clarify and resolve their impasse.

Upon requesting to be intimate with the deceased, he was rebuffed and the insults were repeated.

The accused proceeded to the dining from where he took the metal hoe and returned to the bedroom whereupon he struck the deceased on the head.

After striking, he wrote a suicide note and then set ablaze the bedroom in which the struck deceased was lying.

The question is simply: whether or not the alleged insults and reaction vitiate intention, or, phrased differently:

Did the insults occasion loss of self-control so as to negate any formulation of intention?

The remarks by MUSAKWA J with the concurrence of MAFUSIRE J in S v Kazembe HH15-14 go a long way in defining when provocation can be sustained as a partial defence to murder.

In S v Kazembe HH15-14, it was stated:

“A provoked man loses the power of self control…,. Provocation may go beyond a man's endurance. It may render a man unable to form an intention to kill….,. The provocation must be such as to have actually caused the accused to have lost his self-control though not necessarily his capacity to intend to kill. The provocation must also have been such, that, in the circumstances, an ordinary man would have lost his self control and acted in such a manner.”

It is clear, that, if a person is capable of some self control he is capable of forming the requisite intention and liable for his actions: see S v Stephen 1992 (1) ZLR 115; S v Musina 2010 (2) ZLR 498; and also S v James Chishakwe HH17-19.

In this case, the accused, after being insulted, went away to cool off and then came back to resolve the impase.

The same insults were hailed at him, and, there is no basis why he would have snapped and lost it given the repeated insults.

In fact, going by his reaction, he thought of getting a stick with which to assault the deceased and then proceeded to the dining room.

He made a choice between a stick and a hoe. He retrieved a hoe with which to assault the deceased.

He then came back, struck her head, wrote a suicide note, and then set on fire the bedroom in which the immobilised now deceased was.

Evidence adduced showed the accused, after the insults, also packed his clothes and other belongings and took them out of the campus before setting the bedroom on fire.

He had time to plan and pack his belongings to ensure they would not be burnt by the fire.

Such sequence of events is not consistent with instantaneous and spontaneous reaction to provocation.

The accused had time to ponder over the insults and rejection of intimacy and sought to punish the deceased for that.

In dismissing the defence of provocation, MATHONSI J, in S v Best Sibanda HH139-18, made it clear that in circumstances where provocation is not sufficient to make a reasonable person lose self control, then, the defence is not available.

He remarked;

“…, provocation, by its very nature, connotes instantaneous and spontaneous reaction to phenomena in which the actor does not have any opportunity to formulate a strategy but acts in the spur of the moment having lost self control in response to the actions of another.”

In the present case, the accused had time to ponder over the insults and planned to come back at night in order to discuss the issue. Upon seeing the deceased, who denied to be intimate with him, and repeated the same insults, he actually went out to get a weapon with which to assault. He made a choice between a metal hoe and stick - and opted for a metal hoe. The accused packed his belongings then struck the head and lit a fire, leaving the deceased to burn while he fled after having written a purported suicidal note.

It is apparent the accused caused the death of the deceased.

The court is only to decide whether or not the accused committed the offence of murder with actual intention or legal constructive intention.

Actual intention was described fully, and with clarity, in S v Mungwanda 2002 (1) ZLR 574.

The court held, that, for a court to convict an accused of murder with actual intention the State must prove, beyond reasonable doubt, that:

(a) The accused desired to bring about death of his victim and succeeded in completing that purpose; or

(b) While pursuing another objective, the accused foresaw the death of his victim as a substantially certain result of his activity and proceeded regardless.

In other words, the question is whether or not, when the accused engaged in the conduct complained of, he had the requisite intention to kill as contemplated in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: see also S v Lloyd Mukukuzi HH577-17.

The sequence of events in casu depict clear formulation of intention in circumstances where a reasonable person could not have lost self-control.

The defence of provocation, raised by the accused, cannot be sustained in the circumstances.

The accused, in this case, while bent on torturing the deceased for denying him sexual intimacy, struck the deceased in the head and set on fire the bedroom in which she was, in circumstances where the accused foresaw that the deceased's death was substantially certain.

The hacking with a metal hoe, and setting on fire, connotes mens rea of actual intention: see S v Mema HB143-13.

Accordingly, the accused is found guilty of murder with actual intention as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentence

In coming up with an appropriate sentence, I have considered all mitigatory and aggravatory factors submitted by counsel for the accused and counsel for the State respectively.

We have also taken note of the standard sentencing principle which places a duty on the court, when passing sentence, to seek to match the offence to the offender while at the same time ensuring the society does not lose confidence in the justice delivery system.

The accused is a first offender with some family responsibilities. He accepted liability, although not to the degree proved by the State. He acknowledged assaulting and setting the deceased on fire was wrong. Further, in mitigatory, is the fact that the accused has been in custody for over a year awaiting the finalisation of the offence.

That the offence was committed in 2014, and it took three (3) years for the accused to be apprehended as he fled from justice and hibernated in a cave, is aggravation.

As correctly observed by the State counsel, the circumstances surrounding the arrest of the accused are aggravatory. The accused resisted arrest and fought to avoid being brought to terms with the law.

The accused sought to conceal the heinous murder by burning the deceased and also inscribing a stone to create the impression that he was dead and had been buried when he inscribed a stone “Lameck's grave”.

His arrest was just fortuitous given the accused had left a suicidal note.

Further, in aggravation, is the fact, that, the accused killed his 2 year old live-in girlfriend for no reason at all.

The circumstances are clearly an indication of a cruel man bent on torturing a woman “in a clear move of, if I cannot have you no one else can.”

The accused, in a dehumanising manner, sought to punish the deceased for exercising the right to refusal of sexual intimacy.

The alleged insults and denial of intimacy did not justify the callous and brutal murder of a mother at a tender age. The deceased lost her life at the merciless hands of the accused and such precious human life cannot be replaced.

The courts have to express displeasure at inhuman and degrading treatment resulting in loss of life: see State v Robert Tevedzayi HH206-18.

Also see S v Chipo Madondo HMA24-17, wherein MAWADZE J, commenting on the evils of domestic violence between spouses occasioning loss of life, made these pertinent remarks:

“This matter brings to fore the scourge of domestic violence which has afflicted our society leading to ghastly consequences which include loss of life. It is saddening to note that spouses are meeting their demise at the hands of those who have taken vows to love them forever.”

In this case, the accused and the deceased lived in as husband and wife for two (2) years such that one would have expected love and care and not violence to prevail.

The courts have to move in and signal that domestic violence is not acceptable. Moreso, given the loss of life occasioned in this case.

The right to life is clearly enshrined in our Constitution; no one has a right to take away the God-given constitutionally provided right. The courts have to protect the sanctity of human life by passing appropriate sentences.

The sentence should not only deter the accused but like-minded people. The message has to be sent loud and clear, that, courts do not condone domestic violence and clearly resolving disputes by violence has no place in a civilised and progressive society like ours.

The accused, in a heartless manner, struck the deceased with a metal hoe and had the audacity to set her on fire. Such conduct has to be visited with appropriate punishment.

The moral blameworthiness of the accused is high.

He stands convicted of murder with actual intention in circumstances where such offence could have been avoided. The society looks up to husband and wife, or lovers, to exercise duty of care and protection of the other and not brutally taking away the life of the other.

The legislature, in enacting the penalty provision which provides for capital punishment, life imprisonment and imprisonment, sought to express that murder is viewed as a serious offence.

In the present case, upon considering all mitigatory and aggravatory circumstances, the offence is deserving of a lengthy custodial term. You are sentenced as follows:

25 years imprisonment.

HMT42-19 : AGNESS CHIGWADA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

Pursuant to the conviction and sentence for Attempted Murder as defined in section 189(1) as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the appellant lodged the present appeal with this court.

The appellant, a girlfriend to the complainant, was convicted of unlawfully stabbing the complainant, one Josam Mapinge, in circumstances where there was realisation that there was a real risk or possibility that murder may be committed.

The appellant, who stabbed the complainant, Josam Mapinge, with a knife once in the abdomen, was convicted of attempted murder and sentenced to 6 years imprisonment of which 2 years imprisonment was suspended on the usual conditions of good behaviour.

The brief circumstances informing the charge, as discerned from the record, are as follows:

The appellant visited the complainant, the boyfriend. She requested for his cell phone to read some text messages. The complainant gave her the cell phone, and, when he requested the phone back, the complainant resisted and locked herself inside while the complainant was outside. Later, the complainant gained entry into the room and asked for his phone. The appellant was not forthcoming and she then picked the knife from the kitchen and stabbed the complainant.

Dissatisfied with both conviction and sentence, the appellant lodged seven (7) grounds of appeal against conviction and four (4) grounds of appeal against sentence.

The grounds, as discerned from the Notice of Appeal, are as follows:

“Conviction

1. The learned Magistrate erred and misdirected herself at law and fact when she convicted the appellant of attempted murder.

2. The learned Magistrate further erred and misdirected herself at law and fact when she used an armchair approach and stereotyped victims of sexual assault by the complainant.

3. The learned Magistrate further erred and misdirected herself when she rejected the appellant's defence and explanation that she was a victim of sexual assault.

4. The learned Magistrate further erred and misdirected herself when she rejected the appellant's contention that she was acting in self defence.

5. The Trial Magistrate further failed to apply her mind to the inherent dangers of accepting the complainant's testimony (without corroboration) as a single witness to the incident. Ultimately, she failed to apply caution to that evidence.

6. The Trial Magistrate further grossly erred and misdirected herself when she rejected the evidence of the Appellant's witness(es).

7. The Trial Magistrate further erred and misdirected herself when she placed an onus on the appellant to prove her innocence of the charge.

Sentence

1. The sentence that was imposed by the Trial Court induces a grave sense of shock and disbelief and is not in tandem with other decided cases.

2. The Trial Magistrate erred and misdirected herself in her approach to sentence when she paid lip service to the highly mitigatory features in favour of the appellant.

3. The learned Magistrate further erred and misdirected herself when she injudiciously criticized and immortalized the appellant for engaging in an adulterous relationship with the complainant.

4. The learned Magistrate further erred and misdirected herself by sensationally refusing to impose community service or a hefty fine on the appellant.”

The grounds of appeal in respect of conviction are clearly repetitive.

In summary, the appellant took offence with the rejection of the defence proffered by the appellant.

Further, the appellant took issues with the court accepting the evidence of the complainant while rejecting that of the accused and her witnesses.

The appellant thus attacked the factual and legal finding by the court a quo.

What falls for consideration here is whether or not the trial court properly rejected the accused's defence of self-defence.

It is common cause the defence is provided for in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In order for one to succeed in relying on the defence, one must prove that:

(i) He or she did or omitted to do the thing, the unlawful attack had commenced or was imminent;
(ii) His or her conduct was necessary to avert the unlawful attack or that he or she could not escape from or avert the attack;
(iii) The means used were reasonable in all the circumstances; and
(iv) That any harm or injury caused by his or her conduct was caused to the attacker.

Clearly, the defence is only available if the requirements are all met.

Only when there is an unlawful or imminent unlawful attack can one motivate the defence of self-defence.

The trial court had to look at the circumstances presented before it and analyse the evidence to deduce if the appellant qualified for the defence.

The court a quo believed the State witnesses and decided that the appellant did not satisfy the requirements of the defence and thus found her guilty as charged.

A close look at the record of proceedings reveals the following common cause aspects:

1. That the appellant and complainant were lovers and were together on the night in question.

2. That they parted ways after having a misunderstanding over a text message on the complainant's phone.

3. That the complainant followed the accused to her house and that he forced his way in using the back door after failing to be granted access through the front door.

4. That a misunderstanding ensued which culminated in the complainant being stabbed by the appellant.

The complainant was the only witness in the State case.

There was need to be cautious of his evidence so as to eliminate the danger of false incriminations; moreso, given the common cause aspect that the complainant forced himself into the appellant's house when the latter had denied him access over the disagreement about the text message.

Given the manner in which the complainant entered, and the disagreement that existed, there was need to consider the sufficiency of the evidence upon which the court convicted.

The complainant's evidence, and the accused's evidence, and probabilities ought to be weighed in such a manner as to eliminate the dangers of false incrimination.

It is settled, that, the accused in a criminal matter does not have to prove his innocence, but, that the State has to prove the accused's guilt beyond reasonable doubt: see S v Shack 2001 (2) SA CR 185 SC 17 and S v Ndlovu & Others HB81-06.

See also S v Kuiper 2000 (1) ZLR 113.

Once the accused's story is reasonably possibly true, that, the accused ought to be granted the benefit of doubt and be acquitted.

In S v Makanyanga 1996 (2) ZLR 231 GILLESPIE J stated that:

“Proof beyond reasonable doubt demands more than that a complainant should be believed and the accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true….,.”

The accused, in this case, raised the defence of self-defence and the accused was to prove that she was under attack, and that when she engaged in an altercation on the attacker it was to avert the unlawful attack in a reasonable manner: see S v Tafirei Runesu HMA37-17; S v Mabvume HH39-16; and S v Manzanza HMA02-16.

In S v Manzanza HMA02-16 MAWADZE J made the following pertinent remarks on assessment of what is “reasonable” when he remarked:

“In deciding what is reasonable in the circumstances of each case, the court, as already alluded to, should place itself in the shoes of the accused person and not expect the accused person to behave or act like a movie star novo, a super human with papal infallibility or an agent.”

In the present case, the court was faced with the complainant's evidence and the appellant's evidence.

The court a quo, in its judgment, pointed out it had to juxtapose the complainant and the appellant's version and determine which one was true.

Such approach, in the absence of demonstration of reasoning of elimination of the danger of false incrimination, would be faulty.

It is permissible to convict on a single witness evidence, but, the evidence has to be properly weighed with the totality of circumstances and not just balance the evidence of the witnesses in the abstract ignoring the obvious requirement on the State to prove its case beyond reasonable doubt.

It is appreciated the court a quo had the benefit of assessing credibility of the witness.

Given the evidence of the complainant and the appellant, the court a quo ought to have considered that evidence against the defence raised.

The key factor being, that, the accused has no onus to prove his or her innocence; once his defence is reasonably possibly true, then, he ought to be granted the benefit of doubt.

The court a quo, in rejecting the appellant's defence, made inferences while at the same time disregarding other possibilities without justification.

The court a quo had its own reconstruction of what it expected the appellant to have behaved like.

This then leads to the dismissal of the defence of self without considering whether or not it was reasonable in the circumstances the appellant found herself in as enunciated in S v Manzanza HMA02-16 and S v Ntuli 1975 (1) SA 429.

The court was dismissive of the defence of self defence as it made a finding, that, the appellant was aggrieved by the fact that the complainant, whom she had been in an adulterous affair with for 5 years, was seeing another woman and that she was incensed with jealousy since she anticipated marriage.

This appeared to be an inference drawn by the court despite the common cause aspects that the complainant is the one who pursued the appellant at the house, and, despite being denied entry, forced his way into the complainant's house.

This intrusion is what the appellant sought to wade off.

The appellant's defence was that the complainant used the back door to enter and he sought to sexually impose himself on her.

It is in the context of that attack that the self-defence was motivated, and, of course, the issue of whether the means used were reasonable in the circumstances arises.

The court a quo rejected the defence version on the basis that there were two (2) other people in the house and assumed the complainant would not have made sexual overtures.

Further, in its judgment, the court a quo further remarked:

“It was impossible for the complainant to raise his chest whilst his hand was propping her private parts and the other taking out his penis….,. If it happened in that manner, it could not be true for the accused to say the complainant was pressing her down and could not have freed herself. What it means is that if the upper part of the complainant's body was not in contact with accused's body she could easily have managed to sit down and free herself from complainant's grip. There was no way complainant could have entered her private parts whilst seated.”

This is clearly indicative of the court entertaining the appellant being under attack but then falling into the error of seeking to measure, with nice intellectual callipers, the precise bounds of the legitimate defence.

The court a quo proceeded to draw inferences on the occurrences and discounted other possibility in circumstances where there is no justification for such findings.

The appellant was under attack from the lover, who forced his way into the house on the background of a misunderstanding over a cell phone message.

That the appellant sought to impose himself on her is reasonably possibly true given forced entry into the house and the use of a knife. The use of a knife to stab him, in face of a potential sexual abuse, cannot be said to be disproportionate to the harm that would have been caused by the non-consensual intimacy or rape.

That the appellant and complainant used to be intimate, consensually, in the past, should not be held against the appellant's defence given the background of disagreement.

In any event, prior consent to intimacy in the past would not mean consent on that day.

The forced entry into the appellant's house, given the affair, could have been most likely actuated by the beliefs that he was entitled to special privileges. This, on its own, gives credence to the appellant's defence of self-defence, and, in the face of sexual imposition, the limits of the defence were not exceeded.

The appellant's story was reasonably possibly true and she ought to have been acquitted.

The appellant had also appealed against sentence and the respondent conceded. I will not dwell much on the aspect of sentence as it does not arise given our finding on conviction.

Suffices, however, to point out, that, pursuant to a proper conviction for attempted murder, the sentence of 6 years imprisonment with 2 years suspended on condition of good behaviour is in sync with sentences imposed for similar offences.

There would have been no reason for interfering with the properly exercised sentencing discretion.

In the present case, the conviction cannot stand, and, consequently, the sentence falls off.

Accordingly, it is ordered that:

1. The appeal be and is hereby upheld.

2. The decision of the court a quo is set aside and substituted as follows:

The accused is found not guilty and acquitted.

HMT44-19 : NDIKIYANA MUGADHUYI vs THE STATE
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

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

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face intending to kill her or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

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Domestic Violence and Gender Based Violence

HH229-10 : STATE vs KUDAKWASHE NYAWERA and JOSEPH KASEKE and FRANCIS MUCHAMBA and STANLEY SHONHIWA and FARAI MAVHUNDU Ruled By: MUTEMA J and MTSHIYA J

HB124-14 : THE STATE vs POLITE SITHOLE Ruled By: TAKUVA J and MOYO J

HMA24-17 : THE STATE vs CHIPO MANDOMBO Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and DAURAMANZI

HB91-16 : THE STATE vs TENDAI NKOMO Ruled By: BERE J and ASSESSORS: DUBE and NDLOVU

HH45-15 : JEALOUS MAKOMBE vs THE STATE Ruled By: BERE J and MUSAKWA J

HB115-16 : THE STATE vs ELIZABETH MBULAYI Ruled By: TAKUVA J and ASSESSORS: DAMBA and HADEBE

HB29-14 : THE STATE vs SONNY KUZOMUNHU CHASI Ruled By: MAKONESE J

HB247-16 : THE STATE vs SITHABILE NDLOVU Ruled By: BERE J and MATHONSI J

HH166-15 : THE STATE vs FARAI TUHWE Ruled By: MUREMBA J

HH167-15 : STATE vs ALLEN GUDYANGA Ruled By: CHIGUMBA J

HB42-12 : THE STATE vs JOHN MUCHEKAYAWA Ruled By: MAKONESE J

HMA14-18 : GILBERT BALOYI vs THE STATE Ruled By: MAWADZE J and MAFUSIRE J

HMA51-17 : STATE vs HARDLIFE GADZAI Ruled By: MAFUSIRE J and MAWADZE J

HB162-15 : THE STATE vs NQOBILE NCUBE Ruled By: MAKONESE J

HMT04-18 : THE STATE vs TALENT CHAKABVA Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

HH516-17 : STATE vs ARNOLD JERI Ruled By: TSANGA J and ASSESSORS: MTAMBIRA and MHANDU

HB89-15 : EDNA SIBANDA vs THE STATE Ruled By: MUTEMA J and MOYO J

HMT05-18 : THE STATE vs JAMES SIKILA Ruled By: MWAYERA J and ASSESSORS: CHIPERE and MAGOROKOSHO

HH190-16 : THE STATE vs FORTUNATE NSORO Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HB88-12 : THE STATE vs LOVEMORE ZULU Ruled By: MAKONESE J

HMT13-18 : THE STATE vs PATRICK KASHIRI Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

HH515-17 : STATE vs MADALITSO RANCHI Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HH206-18 : THE STATE vs ROBERT TEVEDZAYI Ruled By: TSANGA J and ASSESSORS: KUNAKA and JEMWA

HH45-16 : THE STATE vs PHILLIP NDACHENGEDZWA Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHIPERE

HH794-16 : STATE vs EDMORE KARADZANGARE Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HH784-15 : THE STATE vs TAWONA MICHAEL MHUTE Ruled By: BHUNU J and ASSESSORS: GONZO and SHENJE

HB267-16 : NJABULO NDLOVU vs THE STATE Ruled By: MATHONSI J

HH12-12 : THE STATE vs TAWONA MICHAEL MHUTE Ruled By: BHUNU J and ASSESSORS: GONZO and SHENJE

HMT19-19 : THE STATE vs LYDIA KAHWEMA Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and CHIPERE

HB17-15 : THE STATE vs MANDLENKOSI NCUBE Ruled By: MOYO J

HB22-15 : THE STATE vs FREDDY SAVANHU Ruled By: KAMOCHA J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB26-20 : THE STATE vs BENJAMIN MPANDUKI Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB30-20 : THE STATE vs ESTHER MOYO Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB67-15 : THE STATE vs QINISO SIBANDA Ruled By: MAKONESE J

HB124-17 : THE STATE vs FREDDY SHAVI Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB127-17 : THE STATE vs GLADYS MUTOPA Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB129-17 : THE STATE vs AGNES CHIPIKA Ruled By: MAKONESE J

HH435-16 : THE STATE vs WESTON MOMBESHORA Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

HB24-15 : THE STATE vs THEMBINKOSI GUMBI Ruled By: KAMOCHA J

HB69-15 : THE STATE vs NDABEZINHLE NCUBE Ruled By: MAKONESE J

HMT03-20 : THE STATE vs BERNARD MUCHADEI Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

HMT01-20 : STATE vs GEORGE PFUMBWA Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and RAJA

HMT10-19 : THE STATE vs LAMECK MANYANGA Ruled By: MWAYERA J and ASSESSORS: CHAGONDA and SANA

HMT42-19 : AGNESS CHIGWADA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT44-19 : NDIKIYANA MUGADHUYI vs THE STATE Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

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Zimbabwe

HH229-10 : STATE vs KUDAKWASHE NYAWERA and JOSEPH KASEKE and FRANCIS MUCHAMBA and STANLEY SHONHIWA and FARAI MAVHUNDU
Ruled By: MUTEMA J and MTSHIYA J

HB124-14 : THE STATE vs POLITE SITHOLE
Ruled By: TAKUVA J and MOYO J

HMA24-17 : THE STATE vs CHIPO MANDOMBO
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and DAURAMANZI

HB91-16 : THE STATE vs TENDAI NKOMO
Ruled By: BERE J and ASSESSORS: DUBE and NDLOVU

HH45-15 : JEALOUS MAKOMBE vs THE STATE
Ruled By: BERE J and MUSAKWA J

HB115-16 : THE STATE vs ELIZABETH MBULAYI
Ruled By: TAKUVA J and ASSESSORS: DAMBA and HADEBE

HB29-14 : THE STATE vs SONNY KUZOMUNHU CHASI
Ruled By: MAKONESE J

HB247-16 : THE STATE vs SITHABILE NDLOVU
Ruled By: BERE J and MATHONSI J

HH166-15 : THE STATE vs FARAI TUHWE
Ruled By: MUREMBA J

HH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

HB42-12 : THE STATE vs JOHN MUCHEKAYAWA
Ruled By: MAKONESE J

HMA14-18 : GILBERT BALOYI vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

HMA51-17 : STATE vs HARDLIFE GADZAI
Ruled By: MAFUSIRE J and MAWADZE J

HB162-15 : THE STATE vs NQOBILE NCUBE
Ruled By: MAKONESE J

HMT04-18 : THE STATE vs TALENT CHAKABVA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

HH516-17 : STATE vs ARNOLD JERI
Ruled By: TSANGA J and ASSESSORS: MTAMBIRA and MHANDU

HB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

HMT05-18 : THE STATE vs JAMES SIKILA
Ruled By: MWAYERA J and ASSESSORS: CHIPERE and MAGOROKOSHO

HH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HB88-12 : THE STATE vs LOVEMORE ZULU
Ruled By: MAKONESE J

HMT13-18 : THE STATE vs PATRICK KASHIRI
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

HH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HH206-18 : THE STATE vs ROBERT TEVEDZAYI
Ruled By: TSANGA J and ASSESSORS: KUNAKA and JEMWA

HH45-16 : THE STATE vs PHILLIP NDACHENGEDZWA
Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHIPERE

HH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HH784-15 : THE STATE vs TAWONA MICHAEL MHUTE
Ruled By: BHUNU J and ASSESSORS: GONZO and SHENJE

HB267-16 : NJABULO NDLOVU vs THE STATE
Ruled By: MATHONSI J

HH12-12 : THE STATE vs TAWONA MICHAEL MHUTE
Ruled By: BHUNU J and ASSESSORS: GONZO and SHENJE

HMT19-19 : THE STATE vs LYDIA KAHWEMA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and CHIPERE

HB17-15 : THE STATE vs MANDLENKOSI NCUBE
Ruled By: MOYO J

HB22-15 : THE STATE vs FREDDY SAVANHU
Ruled By: KAMOCHA J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB26-20 : THE STATE vs BENJAMIN MPANDUKI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB30-20 : THE STATE vs ESTHER MOYO
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB67-15 : THE STATE vs QINISO SIBANDA
Ruled By: MAKONESE J

HB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB129-17 : THE STATE vs AGNES CHIPIKA
Ruled By: MAKONESE J

HH435-16 : THE STATE vs WESTON MOMBESHORA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

HB24-15 : THE STATE vs THEMBINKOSI GUMBI
Ruled By: KAMOCHA J

HB69-15 : THE STATE vs NDABEZINHLE NCUBE
Ruled By: MAKONESE J

HMT03-20 : THE STATE vs BERNARD MUCHADEI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU
Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

HMT01-20 : STATE vs GEORGE PFUMBWA
Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and RAJA

HMT10-19 : THE STATE vs LAMECK MANYANGA
Ruled By: MWAYERA J and ASSESSORS: CHAGONDA and SANA

HMT42-19 : AGNESS CHIGWADA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT44-19 : NDIKIYANA MUGADHUYI vs THE STATE
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO