Judgment No. HB 68/2003

                                                                                    Case No. HC

                                                                                    CRB 70/00

 

THE STATE

 

Versus

 

BLEYA MUNGA

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J (with Assessors Messrs Hadebe and Ndondo)

BULAWAYO 23 MAY 2003

 

H Ushewokunze IIIfor the state

L Nkomofor the accused, pro deo

 

Criminal Judgment

 

            NDOU J:        Before us is a young man aged 21 who has brutally caused the

 

death of his wife.  The manner in which the accused brought about the death of his

 

wife is common cause.  His defence is one of criminal incapacity.  What is not clear

 

from his defence is whether this alleged incapacity is on account of insanity or a non-

 

pathological one.  I will deal with this issue later in the judgment.

 

            The salient facts of this case are that on 10 March 2000 the accused took the

 

deceased to his rural home at George Zingwa’s homestead, Sianungu Village,

 

Kanyangwe area in Binga.  He introduced the deceased to his relatives as his wife. 

 

He lived with her at his elder brother’s above-mentioned homestead.  This extended

 

family lived together happily save for one minor dispute between the accused and

 

the deceased.  The 18^th April is Independence Day in this country.  Like many

 

Zimbabweans on 18 April 2000 the George Zingwa extended family, inclusive of the

 

head of the family, George, his wife Ivies, the accused and the deceased, proceeded to

 

the venue of the celebrations.  At the celebrations the accused did not drink alcohol,

 

or at least the evidence before us shows that he was not seen drinking and there were

 

no symptoms of alcohol consumption.  The family returned home in the evening and

 

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shared the evening meal.  The sole witness, Ivies Zingwa, who testified did not

 

observe any beer at the homestead.  She stated that there was no beer at the

 

homestead.  It can safely be inferred from her evidence that until the time that she

 

retired to bed at around 2000 hours the accused was sober and normal.  According to

 

Mr s Zingwa the accused was not a habitual drinker.  She had, however, seen him

 

once showing some effect of alcohol consumption.  But certainly on the fateful day

 

there was nothing unusual about his sobriety.  She has known the accused as a child

 

from the time he was in primary school to right through until he did his grade 7.  He

 

was staying with her at the same homestead as he is a young brother to her husband. 

 

She described the accused as a very reserved and quiet character.  According to her

 

description of the accused’s personality he was an introvert but he was normal.  He

 

had not suffered any mental illness during the time she had known him.  She knew the

 

accused person very well.

 

            Coming to the events of the fateful day.  She had reason to be close to the

 

couple’s bedroom hut.  She heard the deceased’s voice in normal conversation with

 

the accused.  She did not hear the accused at he usually speaks softly.  This was

 

around 0600 hours.  She later herd the deceased screaming loudly calling her saying

 

some words to the effect – “Mai Priscillah”.  The deceased’s voice emanated from the

 

couple’s bedroom and sounded frightened.  She ran to the couple’s hut and heard the

 

deceased crying, “Maye ngafa”  loosely translated “Oh mother I am dying”.  She tried

 

to open the couple’s closed bedroom hut door by pushing it but failed as it was locked

 

or bolted from inside.  She peeped through a gap on the door.  She saw the deceased

 

lying down facing the floor and her head full of blood.  The deceased was bleeding

 

profusely that the witness ended up crying.  The accused continued to swing the

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hammer which he was wielding upwards and with full force struck the deceased

 

several times about her heard.  At some point the deceased stopped crying.  After

 

some time George Zingwa arrived and forced the door open.  He actually chopped it

 

with an axe.  At that stage the accused had set the couple’s clothes on fire.  The

 

deceased was breathing heavily.  George went to report to the police and seek medical

 

assistance.  When George was away and before the police and the ambulance

 

personnel arrived, the accused was quiet.  He took a blanket and covered the

 

deceased.  Mrs Zingwa testified that at that time she formed an opinion

 

that the accused had not taken alcohol.  He was not drunk.  The accused did not

 

smoke.  The police arrived and the accused was arrested.  As the accused was being

 

led into the ambulance the accused told Mrs Zingwa that he assaulted the deceased

 

because she was no longer listening to him but instead was listening to her.  He said

 

this in response to bad words to him emanating from Mrs Zingwa and others who

 

were present.  At the time the accused was still locked inside with the deceased and

 

those outside were shouting why he was killing someone’s child the accused uttered

 

words to the effect – “If anyone comes in, that person is no more.”

 

            From the undisputed testimony of Mrs Zingwa we are satisfied that the

 

accused was not under the influence of alcohol.  She knows the accused very well and

 

would have observed it if he was drunk.  She did not smell alcohol and at that time of

 

the day the accused would not have started drinking in any event.  All we can discern

 

from his defence outline and what he told the specialist psychiatrist is that, if indeed

 

he consumed alcohol and smocked two dagga cigarettes it would have occurred

 

between 2000 hours of 18 April 2000 and 0600 hours of 19 April 2000.  This, in our

 

view, is far fetched and a fabrication.  In his extra-curial statement he did not give

 

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drunkeness or insanity as a reason for the assault.  When everything was still vivid in

 

his mind he gave a coherent and understandable explanation for the assault.  He said

 

he assaulted her because of disobedience.  He ordered her to go and fetch water to

 

mould bricks to build a house.  Not only did the deceased decline to do so, she further

 

stated that house “was not hers”.  During our deliberations it became clear that such a

 

response might be taken in a very serious light in a rural set up where women are not

 

expected to disobey marital instructions of their husbands.  To further state that the

 

house is not hers can infuriate a man in the accused’s position.  This is consistent with

 

what he told those who were present at the time that he assaulted her because she no

 

longer listened to him but instead listened to Mrs Zingwa.   This is also consistent

 

with what he stated in his extra-curial statement.

 

            In the circumstances, the accused’s rage and actions subsequent to that have to

 

be viewed in that context.  Mr Nkomo, for the accused rightly conceded that this

 

whole issue of drinking beer and smoking two dagga cigarettes is an after thought. 

 

A year later, when he was seen by the specialist psychiatrist the accused must have 

 

tried to give a plausible explanation for the assault and in the process deviated from

 

the truth.  We do not agree that when the accused killed the deceased he was

 

labouring under such a defect of reason, from a disease of the mind, that he did not

 

know the nature and quality of what he did and that what he did was wrong.  From the

 

expert evidence of Dr Poskotchinova the accused was free from any psychotic

 

symptoms.  He was orientated in all respects and there was no evidence of cognitive

 

impairment.  He denied any delusions and hallucinations of any kind.  The doctor

 

opined that due to alcohol and drugs that he had consumed the accused was in a state

 

of diminished responsibility at the time of killing.  We have already indicated that the

 

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alleged intake of alcohol and cannabis is a mere fabrication exposed as such by the

 

credible testimony of Mrs Zingwa.  This fabrication, unfortunately does impact on the

 

conclusion arrived at by the psychiatrist.  The opinion would be correct if the accused

 

told her the truth.  He did not, so the opinion is affected thereby.

 

            In our view the accused’s mental condition at the time of the offence, does not

 

satisfy the requirements of insanity.  We may at most be dealing with the case of

 

abnormal condition and as such the accused is legally responsible for the offence and

 

must be convicted.  So even if we accept the findings of the psychiatrist that there was

 

diminished responsibility the accused would still be convicted.  Diminished

 

responsibility reduced the accused’s moral blameworthiness and not guilt – S v Sibiya

 

1984 (1) SA 91(A); S v Chitiyo 1987(1) ZLR 235 at 239 and Criminal Procedure in

 

Zimbabweby John Reid Rowland at 12-12 to 12-13.

 

            In our view, in light of the findings of fact about the allegation of intake of

 

alcohol and drugs the issue of diminished responsibility does not arise.  The only

 

other issue that we have to consider is one of non-pathological criminal incapacity. 

 

The evidence show that the accused is a very quiet person.  The cause of mental

 

inability seems to emanate from anger linked to mental or physical exhaustion

 

resulting from a perceived disobedient wife.  This strained the accused’s powers of 

 

self-control until these powers snapped – S v Arnold 1985(3) SA 256 (C).  What is

 

important is not the cause or the description of the cause but the inability itself – see

 

Criminal Lawby C R Snyman 3^rd Ed at page 152-3.  This defence has to be treated

 

with great caution as it can be raised easily by the accused but very difficult for the

 

state to refute.  Non-pathological incapacity as a complete defence ought not to

 

succeed easily.  Our courts should not allow this defence to succeed easily otherwise

 

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our criminal justice system would easily become discredited – see Chretien v S 1981

 

1. SA 1097 at 1105H and 1106D.  In casu, the emotional disturbance was only for a

 

brief moment before or during the act and as such its chances of success as a defence

 

are almost non-existent.  According to Snyman (supra) on page 154 it is significant

 

that in those cases in which the defence was raised or in which the court was at least

 

prepared to consider it seriously, the accused’s act was preceded by a very long period

 

months or years in which his level of emotional stress increased progressively – see

 

also S v Campher 1987(1) SA 940(A); S v Calitz 1990(1) SA 119(A) and S vSmith

 

1990(1) SACR 130 (A).  This was not the case in casu.

 

            The burden of proving a defence of the kind raised by the accused lies on the

 

accused.  R v Moyo 1969(1) RLR 162G and R v Benjamin 1968(1) RLR 126(G) and S

 

v Taanorura 1987(1) ZLR 62 (S).  With this in mind one would have thought the

 

accused would have found it prudent to testify under oath to establish a foundation for

 

his defence.  He chose not to do so.  Fortunately, the state adduced evidence of the

 

specialist psychiatrist.  Having regard to the totality of the evidence and our findings

 

the accused has not established a defence of non-pathological incapacity either.  We

 

hold the view that the accused appreciated what he was doing.  His utterances during

 

and after the assaults are consistent with a husband who was annoyed with a wife who

 

did not follow his instructions or “command” as the psychiatrist recalls it in her

 

report.  This is a case of domestic rage.  The accused should be held criminally

 

responsible for his act.  The accused used a hammer weighing 2.11 kilogrammes.  The

 

length of its head is 12.5 centimetres and circumference of the head 18.9 centimetres. 

 

The length of the handle is 29 centimetres and the circumference of the handle is 10

 

centimetres.  He aimed his blows indiscriminately about her head.  She was

 

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defenceless.  According to the post mortem report the cause of death was multiple

 

skull and jaw fractures and violent murder.  Whilst we accept that the accused’s

 

emotional state has to do with the assault, we find that the proven facts establish the

 

crime of murder with legal intent.  This is not a case were the accused had

 

successfully established diminished responsibility entitling him the reduction of his

 

conduct to one of culpable homicide.

 

            We, accordingly find the accused guilty of murder with constructive intent.

 

 

 

 

 

Attorney-General’s Officeapplicant’s legal practitioners

Webb.Llow & Barry respondent’s legal practitioners