Judgment No. HB 29/14

                                                                                                                                                                         Case No. CRB 57/13

 

THE STATE

 

VERSUS

 

SONNY KUZOMUNHU CHASI

 

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 27-28 June 2013, 28, 29, 30, 31 January 20 February 2014

 

W. Mabhaudhi for the state

Mr Shenje for the accused

 

Criminal Trial

 

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 problem.  The accused is aged 74 years.  He faces one count of murder and 6 counts of rape.  On the murder charge the State alleges that during the night of the 15^th November 2012 and at a place near or around Lawley Road, Suburbs, Bulawayo, the accused did wrongfully, unlawfully and intentionally kill and murder Dorcas Chasi (nee Majola) a female adult aged 41 years at the time of her demise.  The accused pleaded not guilty to the charge.  The State further alleges that on a date unknown to the prosecutor but sometime in December 2008, on 6 different occasions at Richmond and Waterford in Bulawayo, the accused knowingly and unlawfully had sexual intercourse with his daughter, then aged 12 years, without her consent or realising that there was a real risk or possibility that she had not consented to the sexual acts.  The accused denied the rape allegations.  I shall first deal with the murder charge.

            The state opened its case by tendering into the record the state outline (Exhibit 1).  The brief allegations are that accused was customarily married to the deceased, Dorcas Majola.  Sometime in 2009 the accused was convicted on fraud charges and sentenced to undergo six years imprisonment.  On the 6^th July 2012 accused was released on home leave from Connemara Prison.  When accused arrived at the matrimonial home at No. 4 Allan Road, Waterford he got the shock of his life when he discovered that his wife was four months pregnant.  An argument ensued and the deceased ran away and sought refuge with some relatives.  The accused returned to Connemara Prison to complete the remainder of his sentence.  In August 2012 the accused was once again released on home visitation for the second time.

            Accused found his family at the Waterford house.  He arrived unexpectedly.  There was a physical confrontation between the accused and the deceased.  The accused was demanding to know the man responsible for the pregnancy.  The children went to seek help from Batanai Chipfunde who came to quell the violence.  The children fearing for their lives went to sleep next door.  The following day, the deceased and the children moved out of the Waterford home to reside at Nkulumane.

            Accused was eventually released from prison on 2^nd November 2012.  He realized that his wife and children had relocated to Lobengula West where they were living with a relative Ambrose Musa Majola.  The accused moved into the Lobengula house and was sleeping in the kitchen with his wife.  The children slept in the living room.  The accused pestered the deceased, demanding to know who was responsible for the pregnancy.  He further demanded that the parties’ undergo an HIV test as he suspected she could be infected with the HIV virus.  The accused stalked the deceased and followed her wherever she went.  He went to her workplace daily, collecting her from her place of employment, Royal Hotel when she knocked off at 3pm.  The accused threatened to kill his wife and the unborn baby unless he was told who was responsible for the pregnancy.  On the 13^th November 2012 the deceased lodged a complainant at Zimbabwe Republic Police, Magwegwe but the accused continued with his threats.

            On the fateful day, the 15^th November 2012, the accused went to the deceased’s workplace and collected her as usual at 3pm.  He then forced her to go with him to Bambanani Centre for HIV testing.  From the New Start Centre the two went into the City Centre where accused took her around the Central Business District until at around 7pm when he forced or lured her to a place at or near Lawley Avenue, in the Suburbs, not far from the City Centre.  It is alleged that, that same evening, the accused who had managed to isolate his seven month pregnant wife, pummelled her to death using fists and other unknown objects.  Around 5am on the 16^th November 2012 accused left the scene of the crime and made a report to one Ndlovu at Holiday Inn Hotel, to the effect that he had been attacked by a gang of robbers.  His wife (the deceased) was not so lucky as she received serious injuries and was raped by the assailants as he watched in horror.  The State alleges that the accused made such false report to divert attention from the heinous crime he had committed.  Police investigations revealed that there was no such robbery.  The accused’s wife together with the unborn child weighing 2.9kg died as a result of injuries inflicted by the accused.

            The accused tendered a defence outline (Exhibit 3), wherein he confirmed that in July 2012 he was released from Connemara Prison on home visitation.  He discovered that his wife was four months pregnant.  He demanded to know who the father was but no answers were forthcoming from the deceased.  Accused stated that in August 2012, he was granted further leave from prison.  He confirms that he wished to undergo an HIV test but this was not possible.  He returned to complete his prison sentence only to return on his final release on 2^nd November 2012.  He states in his defence that on the 15^th November 2012 he went to pick up his wife at Royal Hotel and they proceeded to Bambanani Centre for HIV testing.  The accused says he was pleased with the outcome of the HIV test and they proceeded into the City Centre were they bought some “eats”.  At around 8pm accused says he decided to go and see an old friend one Mambiro who resided in the suburbs area.  The deceased opted to accompany the accused but they failed to locate Mambiro.  It is accused’s defence that as they walked towards the City Centre they were attacked by unknown assailants.  The accused tried in vain to protect his wife and cried for help but he failed to attract anyone in the area.  The accused’s wife suffered serious injuries as a result of the attack.  The accused only left the crime scene around 5am on the 16^th of November 2012 when he made a decision to raise the alarm.  He arrived at the reception desk at Holiday Inn Hotel, which is less than half a kilometre from the scene of the crime.  He told a Mr. Ndlovu at the hotel that he had been attacked by robbers the previous night and that he had not sustained serious injuries.  The police were called and in and in no time an ambulance was collecting the deceased, who at the time was unconscious.  She was taken to the United Bulawayo Hospital where she died on arrival.

            The Post-mortem Report (Exhibit 3) was introduced into the evidence by consent of both Defence and State counsel.  The cause of death was indicated as:-

            (i)         haemorrhogic shock

            (ii)        abruptio placentario (separation of the foetus from the uterus lining of the

                        mother)

            (iii)       assault.

            The Post mortem Report also revealed that the deceased had abrasions on the left leg,

thigh, arm and forearm, abrasions of the right face.  There was also a scalp haematoma on the

frontal region.  There were blood clots under the placenta, mild celebral oedema consistent with

blunt force trauma.  The Pathologist also observed a dead female foetus weighing 2.9kg.

            The accused’s warned and cautioned (Exhibit 4) statement was tendered into evidence by

consent.  The statement was made by the accused in long hand, in the Shona Language at CID

(Homicide) Bulawayo on the 20^th November 2012.  The full version of the statement in the

translated version is as follows:

            “I, Sonny Kuzomunhu Chasi do hereby deny the charge of killing my wife, one Dorcas, on the 15^th of November 2012.  What happened is that, we went to a New Start Centre for testing since I had found my wife with a seven months pregnancy, upon my coming from Connemara Open Prison.  This was after I had discovered in July the 6^th and August, that she was pregnant.

 

            We left Royal (hotel) together and then rested at the City Hall.  I then told my wife to proceed home, while I see a friend of mine, one Mambiro, at Youth Hostel, 12^th Avenue, where I intended to get some money but, she (wife) refused and then proceeded there together.  We waited for Mambiro until 2100 hrs, when we then left proceeding along Livingstone road.  When we got to the intersection of Livingstone road and 4^th Avenue, we were attacked by four men, armed with knobkerries and knives.  They assaulted Dorcas and she fell down.  They started attacking me while holding knives.  I ran away but, I tried to fight using stones as well as throwing some soil.

 

            They ran away along 4^th Avenue.  I tried to help my wife by screaming, while she herself was crying but, we did not get any help.  We slept there, while I, was looking after my wife, who had been complaining of pain.  I later went to Holiday Inn at 05:00 hrs and called a police officer and an ambulance.  The Police came after a short while and we were then taken to Central Hospital.  My wife started ailing and was taken to Petgreen ward, where she started becoming weak.  She was further taken to the Intensive Care Unit (ICU) where upon she passed on at 15:00 hrs.

 

            It shocked and drained me, and I was mentally troubled indeed.  To this day, I am still being troubled.  They (perpetrators) had gotten hold of her and had sexual intercourse while I looked on.  My wife had been working at Fort Group, where, I had written a letter, while I was at Khami Maximum Prison.  She had started working (there) in November 2009.  She had refused to go home, until I said so, where upon, she came with me.”

 

            The State led evidence from eight (8) witnesses, namely, Maidei Chasi, Davidson Mawoneke, Gasper Ngwenya, Saul Nkomo, Batanai Chipfunde, Ambrose Musa Majola and Edward Majawa.

I shall proceed to summarise the evidence of each and every witness without necessary

repeating verbatim what each witness testified.

            Maidei Chasi

            This witness told the court that the deceased was her mother and the accused is her father.  Sometime in August 2012 the accused came home on home visitation from Connemara Prison.  The accused made an unexpected arrival at night.  On that day she heard her parents arguing and later she heard her mother crying.  She observed her father beating up her mother.  She went and called Batanai Chipfunde who was then residing in the main house at their Waterford home.  Chipfunde physically separated the accused and the deceased who were fighting.  After the situation was calmed down the witness went and slept next door.  The deceased left the Waterford house that day, never to return.  She first went to live in Nkulumane and then moved to Lobengula West.  The witness testified that in early November 2012 the accused was released from prison.  The witness was at the Lobengula House when the accused arrived.  At first they refused to open the door only to do so when the accused brought the police.  The deceased was not at home that night.  The accused packed all of deceased’s clothes and left the house in the middle of the night.  The following day, the accused returned to the Lobengula house where they resided until the death of the deceased.  The witness testified that accused continuously threatened the deceased demanding to know who was responsible for the pregnancy.  At that time the deceased was then seven (7) months pregnant.  Maidei told the court that the accused was stalking her mother.  Wherever she went he would go.  If she went to the toilet he would follow her.  If her mother’s cellphone rang the accused would answer it.  He would follow her to work.  He would follow her to the bathroom.  Eventually, the accused took physical custody of her mother’s cellphone.  At 3pm the accused would collect the deceased from her place of work.  The deceased had come to be nicknamed:-

                        “The lady with the bodyguard from Connemara.”

            The witness stated that what worried her was the accused would always threaten to kill her mother and also kill the unborn baby, and then go on to kill the person responsible for the pregnancy.  She also confirmed that her mother had at some point lodged a complainant with the police.  On the 16^th of November 2012, the witness stated that she saw the accused arriving at the Lobengula house early in the morning.  She observed that the accused’s brownish/greenish suit was blood stained.  She also noticed that accused was holding her mother’s purse which was blood stained.  The witness went and called Ambrose Majola. The accused then announced that “Dorcas is dead.”  The accused said they had been attacked by four robbers near Gwanda road.  He further pointed out that he had tried to fight the robbers but they had overpowered him.  The deceased had not been so lucky and had sustained serious injuries and had died.  The accused pointed out that his attempts to get help had been in vain.  All he could do was cry.  Maidei observed that the accused did not have any visible injury, neither did he say that he had received any treatment at the hospital.  The witness was subjected to extensive and lengthy cross-examination.  She remained steadfast and stuck to her version of events.  She was not discredited in any material respects.  Her evidence reads well and she must be believed.  Most of her evidence was corroborated by other state witnesses and we accepted her evidence as being worthy of belief.

 

Davison Mawoneke

This witness is employed as a security guard.  Sometime in November 2012 he was employed by a company known as DPS. On the 15^th November 2012 he reported for duty at 1800hours at the SDA Headquarters at the corner 4^th Street between Livingstone and Lawley roads, Suburbs, Bulawayo.  He was alert throughout the night and the premises are armed with movement censors.  During the course of the night he heard no disturbances within the vicinity of the premises he was guarding or any pleas for help.  He knocked off the following day at around 0600 hours.  He testified further that on the 15^th November 2012 there was an annual gathering of SDA congregants at the place he was guarding.  There were several motor vehicles getting in and out of the premises until late in the night.  This witness flatly denied that he would have failed to notice the accused in the vicinity of the premises that he was guarding if there had been involved with robbers.  The evidence of this witness was easy to follow.  There was no tinge of exaggeration and the witness was an independent witness with absolutely nothing to gain.  We believed the evidence of this witness which we found to be credible and consistent in all material respects.

 

Gasper Ngwenya

This witness testified that he is employed by the Bulawayo City Council’s Fire and Ambulance service as an Ambulance Technician.  On the 16^th November 2012 at about 0530 hours he was on duty when he went to attend a scene where the accused alleged he had been attacked by robbers.  On arrival at the scene of the crime, the witness observed the accused seated next to the deceased.  Accused did not have any visible injuries.  The deceased had injuries on her head.  She also had an injury on the left leg.  She was not able to talk and they ferried her to the United Bulawayo Hospitals.  This witness confirmed that the accused said they had been attacked by robbers the previous night.  The accused assisted to place the deceased in the ambulance and he did not appear to have any physical difficulties in moving around.  The evidence of this witness was straightforward and his evidence was not contradicted in any way under cross-examination.

 

Saul Nkomo

Saul Nkomo is employed as a domestic worker at 52 Pauline Road, Suburbs, Bulawayo.  On the 15^th of November 2012 he was at work the whole day.  His room is near the gate and during the course of the night he did not hear anyone screaming or crying out for help.  The witness stated that accused was brought to his workplace by the police and he confirmed that he had not seen him on the 15^th of November 2012 or at any other time.  The witness indicated that on the night in question no one had come to his gate seeking any assistance.  He confirmed that Suburbs is generally a very quiet residential area and if there had been any commotion he would not have failed to hear it.  We found the evidence of this witness to be credible in all material respects.  There was no reason to doubt the truthfulness of the evidence of this witness.

 

Batanai Chipfunde

The state then led evidence from Batanai Chipfunde.  This witness was known to the accused and to the deceased and his family.  He was residing at No. 4 Allan Road, Waterford, Bulawayo.  He was present at this address when the accused came from prison for home visitation.  He was awoken by Maidei Chasi sometime in August 2012 at around 2200 hours.  He was called to intervene in a dispute between accused and the deceased.  He said he physically separated the two who were exchanging blows.  After he managed to control the fight the accused summoned his children and the deceased and lectured them about the lessons he had learnt at prison in relation to HIV.  In particular, he said that they were taught that once they were released from prison they and their spouses should undergo HIV testing before engaging in sexual intercourse.  The following day deceased collected her clothes and left the Waterford house together with her children.  The witness testified, crucially, that the deceased had told the accused that she was no longer interested in the marriage and the accused was refusing to accept the deceased’s position on the matter.  As far the witness was concerned when the accused returned to prison the issue remained unresolved.  The defence declined to put any questions to this witness in cross-examination.  We found the evidence of this witness to be credible in all material respects.

 

Ambrose Musa Majola

The witness testified that he resided at House 71971 Lobengula West, Bulawayo.  The deceased was his niece and the accused was the husband to her niece.  Sometime in August 2012 the witness was staying with the deceased and her children when the accused arrived.  The children locked themselves in the house as soon as they realised the accused had arrived.  The accused eventually entered the house with the assistance of the police.  On this occasion the deceased was not at the house.  The accused woke up during the night and collected all of the deceased’s property and took it away.  The deceased returned to prison with the issue between him and the deceased unresolved.  On the 2^nd of November 2012 the accused arrived at the Lobengula house early in the morning.  He indicated to the deceased that he had come “to finish the war he had started.”  The witness said that the accused was very disturbed when he realised that he was in the house and that he had overheard the conversation.   The accused started accusing the witness of keeping a family that did not belong to him.  The witness told the court that the situation between the deceased and accused was very bad.  The accused would follow deceased wherever she went.  The accused had taken possession of deceased’s mobile phone.  The accused also escorted the deceased to and from work.  The accused threatened to kill the deceased and the unborn child.  He demanded that they go for HIV testing.  The witness stated that the threats of death were continuous and on one day he demanded to know who was responsible for the pregnancy.  He then uttered these words:-

            “I want to kill you and remove the pregnancy that you have.”

            The witness testified that on the 15^th November 2012 the accused escorted the deceased to work.  Both did not return that day.  A day later the accused come home in the early hours of the morning.  He narrated that he had gone with the deceased to a New Start Centre for HIV testing.  Later in the day they had gone to see a friend of the accused.  On their way back they were attacked by a group of four (4) armed robbers.  They attacked the deceased and raped her but he was lucky to escape without any injuries.  The evidence of this witness is critical in that it corroborates the evidence of Maidei Chasi in material respects.  The evidence confirms that all was not well between the accused and the deceased before she died.  The evidence further corroborates the fact that the accused person had prior to the deceased’s death threatened to kill the deceased and destroy the pregnancy.  The evidence also confirms that days before the deceased died he stalked her to the extent that he had almost become “her shadow.”  Where she went he went also.  He kept her mobile phone.  We find the evidence of the witness to be credible.  The witness was not shaken under cross-examination and his evidence was not controverted in material respects.    All the criticisms levelled against this witness by the accused person are of no consequence in that most of his evidence is common cause, in any event.  His evidence must be accepted as being truthful.

 

Edward Majawa

This was the last witness for the State on the murder charge.  Edward Majawa is a Detective Sergeant attached to CID Homicide for the past 7 years.  He was the Investigating Officer of this case.  He initially treated the accused as a witness after the accused had reported that he had been robbed in the company of his wife (the deceased).  He recorded a warned and cautioned statement from the accused.  Accused elected to give his statement in long hand in the Shona language.  After investigating the circumstances of the alleged robbery it soon became apparent to the witness that the police were being led on a wild goose chase.  Their investigation then turned to the accused.  The accused took the witness to the corner of Lawley Street and 4^th Street in the suburbs area.  They went to a Youth Centre were accused said he wanted to see a friend.  The alleged robbery occurred near a busy road, 12^th Avenue and there is an SDA Headquarters which has 24 hour security.  The accused’s story did not add up and a murder docket was compiled with the accused is the suspect.  Amongst several factors that did not make the accused’s story credible are the following:

(a)        the attack took place at or near the SDA church which was busy at the time.

(b)        the accused should have from indications he made been attacked at the place where vehicles were parked.

(c)        he should have raised the alarm.

(d)       there was no coloured lady residing at the house the accused said he had gone for assistance; neither were there any vicious dogs.

(e)        the accused had no visible injuries, save for his blood soaked clothes.

(f)        the witness established that there was no one by the name Mambiro at the Youth Centre where accused alleged he had gone.

(g)        the alleged robbers did not take anything of value from the accused and the deceased.

(h)        there was no possible motive for the attack on accused and the deceased.

            The evidence of the police detective was very clear and concise.  It was credible and worthy of belief.  There was no contradiction or exaggeration in his evidence.  The evidence is accepted by the court as truthful.

 

The Defence case

The accused elected to give evidence under oath.  He testified that he is now 74 years old.   At the time of the offence he was aged 72.  He told the court that he was happily married to his wife in accordance with customary law.  He was in such marital union for 20 years as at the time of death of the deceased.  He said he loved his wife very much.  He discovered that his wife was pregnant by another man when he went for home visitation form Connemara Prison in July 2012.  He said although he was shattered by the discovery he had forgiven his wife.  He said all he wanted was for the deceased to undergo an HIV test so that they could resume sexual relations.  He confirmed that his wife was seven (7) months pregnant at the time of her death.  I shall not repeat most of the events which are common cause and which I have already commented upon.

            It is beyond dispute that on the 15^th of November 2012, the accused and the deceased were together after accused collected the deceased from her work place around 3pm.  It is also common cause that the two attended at Bambanani Centre for HIV testing on that day.  What is in dispute is what the parties did from that point onwards.  The accused states that he went into the Central Business District, bought something to eat and drink and they sat outside the City Hall discussing matters of mutual concern.  Around 7pm the accused informed the deceased that he wanted to go and borrow money from an old friend in the Suburbs.  The accused repeated what is contained in his warned and cautioned statement (Exhibit 4).  It shall not be necessary to repeat the same.  We did not believe the accused person’s defence and rejected it as false.  I shall now proceed to analyse the evidence that has been placed before the court which has led us to the conclusion that the accused’s defence is false.

 

 

Analysis of evidence and findings

The State case is predicated upon circumstantial evidence.  There is no direct evidence or an eye witness account of what transpired on the 15^th of November 2012.  The burden is accordingly upon the State to prove beyond reasonable doubt that the only conclusion that can be arrived at from the facts presented to the court is that the accused committed the crime of murder.  The State is not required to prove beyond a shadow of a doubt the guilt of the accused person, but a reasonable man looking at the facts objectively must come to the conclusion that “reasonable doubt” has been eliminated and that there could be no danger of false incrimination.

            The evidence of Maidei Chasi and Batanai Chipfunde indicates that the accused person had an axe to grind with the deceased before her death.  When the accused was released on the first home visitation in July 2012 he observed that his wife was pregnant by another man.  He made certain verbal threats against the deceased and returned to prison.  The environment at the matrimonial home was so polluted that the deceased and family had to relocate and live elsewhere.  This is the first indicator that things were not well between the accused and the deceased.  On the second home visitation in August 2012 the accused found his wife at Lobengula West having left the matrimonial home.  On this occasion the accused made direct threats against the deceased.  He vowed to kill the deceased and then eliminate the pregnancy.  He also promised to deal with the person responsible for such pregnancy.  This piece of evidence is narrated by Maidei Chasi and corroborated by Ambrose Majola.  Upon the accused’s release from Connemara Prison on the 2^nd of November 2012 the accused person returned home to find that his family was literally broken.  His wife was now 7 months pregnant.  She was now living with a relative Ambrose Majola.  He demanded that his wife must undergo an HIV test before he could be sexually intimate with her.  At the same time he continued to threaten to kill her.  He stalked the deceased.  He followed her everywhere and accused had become a “shadow” of the deceased.  Accused took control of the deceased’s mobile phone thereby cutting her lines of communication with everyone else.  He became obsessed with the movements of the deceased to such a degree that he followed her into the toilet.  This behaviour by the accused proves beyond doubt that his assertion that he loved his wife cannot possibly be true.  His assertion that he had forgiven the deceased cannot be possibly true as shown by his continuous threats.  It cannot be mere coincidence that the person who makes death threats against the deceased is the same person who escorts the deceased from her work place on the 15^th November 2012 and disappears with her only to return with an announcement that she has died.  It cannot be coincidence that the accused person does not suffer any visible injury at the hands of robbers who presumably attacked both accused and the deceased.

            The accused person states in his defence that the gang of 4 armed robbers had knives and knobkerries and yet he was not attacked or injured in any way.  The robbers took no property from their victims thereby showing no motivation.  The court has found the story related by the accused to be so incredible that it is beyond belief.  No reasonable or sensible person could believe such a version of events.  The accused’s version can only occur in fiction movies designed to entertain children.  It is far from reality.  For these reasons we found that the accused’s version could not be reasonably true and we rejected it.

            I have already indicated that this is a case based on circumstantial evidence.  There is no direct evidence linking the accused to the murder.  The law on circumstantial evidence is however well traversed in our jurisdiction.  The law on this subject has its basis on the two cardinal rules of logical inference as laid down by WATERMEYER (JA) in the case of R v Blom 1939 AD 188, where the learned judge observed that the following rules must be observed:-

“(a)     the inference sought to be drawn must be consistent with all the proved facts.  If it is not the inference cannot be drawn.

(b)        the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.”

 

See also the case of S v Marange 1991 (1) ZLR 244 SC where KORSAH, JA at page 249 referred to an English case as follows:

“Lord Normad observed in Teper v R [1952] Ac 480 at 489 that:

“Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because of this kind may be fabricated to cast doubt on another ----.  It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are not other co-existing circumstances which would weaken or destroy the inference.”

 

            The court, therefore, can only convict on circumstantial evidence provided it is sufficient to preclude every reasonable inference of the innocence of the accused.  See also the case of S v Shoniwa 1987 (1) ZLR 215.

            In casu, the proved and established facts are as follows:-

 

(a)        Motive

            In July 2012 the accused had a physical confrontation with the deceased over the pregnancy that she carried.  He made death threats against her.  He further threatened to destroy the unborn baby.  In August 2012 the accused made further threats to kill the deceased.  The evidence of Maidei Chasi and Ambrose Majola on this aspect was not challenged.  On the 2^nd of November 2012 the day the accused was released from prison he moved into the Lobengula house with the deceased and the children.

            Accused made further threats against the deceased and vowed to destroy the pregnancy.  These threats were of a serious nature as shown by the conduct of the accused who took charge of the deceased’s mobile phone.  He stalked her.  There was no evidence of reconciliation up to the day of the death of the deceased.  When accused first arrived from prison on his release he swore that he had come “to finish the war he had started.”  The only outstanding issue between the accused and the deceased was the pregnancy.  The only reasonable and probable inference is that the accused had come to deal with the accused and the pregnancy.  The accused’s utterances preceding the death of the deceased coupled with the accused’s behaviour indicate that he had the motive to kill.

 

Accused’s presence at the scene

The only person to have been present when the deceased was fatally and brutally attacked was the accused.  The police investigated the accused’s claims of a robbery and quickly realized that they were being led on the garden path to nowhere.  The accused was the only person at the scene of the crime at the material time who had a motive to kill the deceased.  The accused told the court that he had demanded an HIV test because he wanted to resume sexual relations with the deceased.  Curiously, the accused’s defence version alleges that the deceased was raped before she was killed.  All this happened as the accused was watching and all he could do was to watch and cry.  Accused had the opportunity to put into action his threats to dispose of both the deceased and the unborn baby.  He also desired to have sexual intercourse with the deceased.  He actioned all his objectives.

 

 

 

Accused’s false defence

It is trite that where the accused person is found to have lied then he ought to have intended to hide something.  The accused’s lies though not necessarily proof of guilt, when taken together with the proved facts lead to only one inference.  That inference is that the accused is indeed guilty.

            It is our considered view that the cumulative effect of the proved facts all point towards the guilt of the accused person.  The evidence before us taken as a whole leave us in no doubt that the State proved its case beyond reasonable doubt on the charge of murder.  We, accordingly find the accused guilty of murder with actual intent.

 

The Rape Charges

On the rape allegations the State led evidence from the following witnesses: Maidei Chasi, Prisca Moyo, Barbra Mbizo and Rutendo Chasi.

            I propose to analyse the evidence of each of the witnesses in turn:-

 

Maidei Chasi

She testified that on six different occasions at Richmond and Waterford at Bulawayo during the year 2008, the accused ravished her and had sexual intercourse with her without her consent.  She was in Grade 6 at the relevant time and aged 12 years.

 

Count one

On the first count Maidei testified that sometime in 2008 her mother had gone away.  She remained at the Richmond house with her father.  One evening after preparing a meal for her father she went to sleep.  The accused came to her bed and woke her up.  He was carrying a bucket with water.  He was not wearing any clothes, save for a towel wrapped around his waist.  He warned the complainant not to say a word or he would kill her.  The accused instructed her that she should not tell anyone what they were about to do.  Accused ordered the complainant to undress.  Complainant complied and she remained with a pant.  Accused then instructed complainant to go outside the house.  Once outside, accused ordered the complainant to face, East, West, North and South.  Accused placed a white piece of paper in the bucket with water and then threw away the water.   Complainant went back into the house to sleep.  Accused later came and lifted complainant from her bed.  Accused threatened to kill the complainant if she ever told anyone what they were going to do.  Despite protestations, the accused proceeded to remove complainant’s pant before inserting his penis into her vagina.  The complainant said accused made some coital movements and was breathing heavily.  After the sexual encounter the accused ordered the complainant to sleep.  Complainant says when she asked the accused the following day what he had done, the accused replied that they were performing some rituals.

 

Count two

On the second sexual encounter the complainant said the accused repeated what he had done on the first occasion, save that on the second occasion he did not take her outside to face the four cardinal directions.  The second sexual encounter occurred at the Richmond house.  After having sex with her without her consent he threatened to kill her if she told anyone what had happened.

 

Count three

The complainant testified that sometime in 2008 and at the same house at number 7 Sturton Drive, Richmond, Bulawayo the accused had sexual intercourse with her without her consent.  Complainant said after the first incident the accused seemed to have gone into the habit of having sexual intercourse with her.  Again, she did not make a report concerning the rape because of the threats made by the accused.

 

Count four

The complainant testified that the fourth incident occurred at Waterford.  The main house was occupied by another person whilst they used the cottage.  The cottage had one room attached to a garage.  The accused slept in the garage and the complainant and her siblings used the other room.  Complainant stated that one evening after preparing the evening meal for her father and brothers, they ate and then went to bed to retire.  She stated that the accused had a tendency of having tea after the evening meal.  The accused instructed the complainant to make him a cup of tea and bring it to his room (the garage).  The complainant complied with the accused’s demands.  She took the tea to her father’s room and as she was about to leave accused reminded what would happen to her if she told anyone about what they had done at Richmond.  Accused told the complainant that it was all about a family ritual.  Complainant asked the accused whether he wanted to do what he used to do to her before.  The accused did not respond.  He instructed her to get onto the bed.  Accused removed the complainant’s clothes and had sexual intercourse with her without her consent.  He again threatened to kill her if she told anyone about the sexual act.

 

Count five

The fifth sexual encounter occurred at Waterford. On this day complainant said that her father asked her to prepare some food and bring it to his room.  Complainant said she decided to prepare the meal and the cup of tea at the same time.  When she presented the tea and the meal at the same time to the accused said she should wait for him until he finished his meal.  After the meal accused ordered the complainant to get on the bed.  Accused removed complainant’s clothes and had sexual intercourse with her without her consent.  She says on that occasion he had been wearing a black suit just before the sexual act.

 

Count six

On the last count complainant testified that one evening the accused came home and said they should not cook.  He had brought some pizza and drinks.  Accused went straight to his room.  Complainant prepared some tea for the accused and took it to him.  The accused did not drink the tea.  He ordered the complainant to get onto the bed.  Complainant said she knew what was to follow.  Accused removed her dress.  Accused had sexual intercourse with the complainant without her consent. 

            Complainant said that on one occasion that year some people came to her school and spoke about child sexual abuse.  She was hesitant to make a report but she made a decision to approach one teacher whom she thought she could trust.  She told her story to Prisca Moyo a teacher at Waterford Primary School.  The following day the complainant was called by Prisca Moyo who was in the company of other school teachers.  She was asked to narrate her ordeal which she did.  She was told to bring her mother to school.  Complainant told the teachers her mother was away.  It is not in dispute that complainant’s mother later went to the school and discussed the matter with the teachers.  The matter was referred to Childline but the outcome of the reports are not entirely clear.  What came out of the evidence is that deceased’s aunt was summoned from Marondera and when she came she was upset at the reports and said the issue would be resolved as a family affair.  We found the evidence of the complainant to be straightforward and credible.  The reports she made to her teachers were corroborated.

 

Prisca Moyo

This witness testified that she is a teacher at Waterford primary School, Bulawayo.  Sometime in 2008 she was approached by the complainant at her house who made certain allegations against her father.  She informed the court that the complainant told her that her father had sexual intercourse with her on a number of occasions saying what he was doing was in accordance with his custom.  The complainant confirmed that the accused had penetrated her.  This witness said that she referred the issue to the school Head who then dealt with the issue.

            The evidence of this witness corroborated the evidence of the complainant in material respects.  It is evident that when the sexual acts occurred, the complainant’s mother was not at home and therefore the accused had the opportunity to abuse the complainant.  The evidence of the witness was not contradicted in anyway.

 

Barbra Mbizo

This witness is also a teacher at Waterford Primary School, Bulawayo.  She was a teacher at the school at the relevant time.  She knew the accused person prior to the offence.  She knew him as a resident of Waterford.  This witness essentially corroborated the testimony of Prisca Moyo.  She narrated how the complainant had given details of the alleged rape at the hands of her father, the accused.  The witness confirmed that accused’s sister had come to the school to inform them that it had been a mistake to report the case to the school authorities and that the issue should be resolved as a family issue.  In our assessment the evidence of this witness was credible.  Her evidence was not contradicted under cross-examination and there was no reason for her to exaggerate.  We believed her evidence as a truthful version of what transpired.

 

Rutendo Chasi

This was the last state witness called by the State on the rape allegations.  She is now aged 45 years.  She is accused’s daughter.  The complainant is her half sister.  The deceased Dorcas Majola was her step-mother.  She testified that sometime in 2008, the deceased informed her that the complainant had made a report at school about a certain issue and that the school authorities had invited her (deceased) to come to the school.  The deceased asked if this witness could accompany her to school.  The witness confirmed that complainant narrated how the accused had sexually molested her on divers occasions.  The witness further confirmed that according to complainant the accused had said that complainant must have sexual intercourse with him as part of some rituals that would enhance his wealth.  This witness, however gave a somewhat different version of what actually transpired.  She testified that complainant said she had been made to undress by the accused, the accused had then penetrated the complainant and then taken semen from his male organ which he placed in a bucket with water and made the complainant to bath in the water.  This witness stated that when the complainant was pressed on whether penetration had indeed occurred she said that the accused had not effected penetration.  The witness further said she personally did not confront the accused about the allegations because she was not comfortable with the issue.  It was quite evident that Rutendo was not a comfortable witness.  She was at pains to agree that the complainant was not prepared to report the matter to any of the close relatives, choosing to report to the teachers at school because she was not sure whether her report would be taken or even accepted.  In our view the evidence of Rutendo strengthens the view that the report by the complainant was not a fabrication.  The report was made in 2008 and with the assistance of accused’s relatives, the matter was swept under the carpet.  It is therefore safe to accept the evidence of this witness where it corroborates the version of the complainant.

 

Analysis of evidence and Findings

This matter involves child sexual abuse.  The accuser in this matter was a 12 year old daughter of the accused.  Such matters are difficult to deal with and the court must take special care to ensure that the danger of false incrimination is eliminated.  It is necessary to delve into the evidence of the complaint and seek to establish whether the evidence is credible, reliable and consistent.  In all six counts the modus operandi is the same.  The complainant was faced with her own father demanding sex from her for “supposedly” ritual purposes.  The accused stood in a position of authority in relation to the complainant.  Besides her own mother, her father was the ultimate authority.  Her narration of events reads and sounds true and credible.  There appears to have been no motivation for her to fabricate the events.  She was able to describe in detail all the six events with a reasonable degree of clarity and consistency.  Her story did not waiver or crumble under intensive cross-examination by defence counsel.  We found the complainant to be credible and worthy of belief and therefore accept her evidence as being truthful.

            The accused person proffered a feeble defence to the rape accusations.  His claim that the deceased’s relatives had conspired with the complainant to avenge the death of their relative lacks any cogency and cannot be acceptable.  The facts show that the allegations of the sexual assaults were made in 2008 before the death of the deceased.  At the time the allegations were made the accused was conspicuous by his absence in that he did not come up to deny the allegations or to explain what problems there could have been with the complainant at that time.  It is interesting to observe that accused’s sister travelled all the way from Marondera to Bulawayo to advise the school authorities at Waterford Primary school that it was a mistake to report the matter at school.  The matter was a family issue.  With that, the matter was taken no further.  It is not for the complainant, who at the time was a child to explain why the matter was not taken to the police.  It seems to us, however that the accused’s hand was involved in the arrival of his sister at Waterford to ensure that the allegations levelled against him would be concealed.  The court also noted that in any event, the allegations were never pursued because the accused was then arrested and sentenced to serve a prison term around that same time.

            In our view the evidence against the accused on all six counts of rape is compelling and indeed overwhelming.  There can be no realistic possibility for the complainant to have concocted the allegations against the accused.  Accordingly, and in the result, the State has proved its case beyond reasonable doubt and is found guilty in respect of all counts of rape.

            Sentence: Murder:     Life imprisonment

                             Rape:         Counts 1-3: 10 years

                                                Counts 4-6: 10 years, effective sentence 20 years imprisonment.  The total effective sentence to run concurrently with the life sentence.

 

 

Criminal Division, Attorney General’s Office, state’s legal practitioners

Shenje and company, accused’s legal practitioners