Judgment No. HB 24/15
Case No. HC (CRB) 133/14
THE STATE
Versus
THEMBINKOSI GUMBI
IN THE HIGH COURT OF ZIMBABWE
KAMOCHA J
GWERU HIGH COURT CIRCUIT 2, 3 AND 4 FEBRUARY 2015
Mrs R. Takuva state counsel
T. Chitere defence counsel
Criminal Trial
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. I shall deal with them later infra in this judgment.
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 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 provision 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 1 ½ years. They said 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. 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 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.
Accused then opened the door. When asked why he was beating up his wife accused did not say anything until the police took him and his wife away.
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, accused had spent 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. Accused would have been sentenced to no less than 19 years had it not been for the fact that he has spent 1 year pre-trial imprisonment through no fault of his.
It had been submitted that his in-laws had demanded cattle and he paid compensation of 6 head of cattle. His uncle said that a longa manu delivery of 8 cattle was made – 2 were sold by the in-laws and 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.
Prosecutor General’s Office, state’s representative
Chitere, Chidawanyika & Partners, defence’s representative
