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                                                                                                                                                                Judgment No. HB 66/15

                                                                                                                                                                  Case No. HC CRB 33/14

                                                                                                                                                                      Kamative CR 5/11/14

THE STATE

versus

BONGANI MUDENDA

 

 

 

HIGH COURT OF ZIMBABWE

MAKONESE J

HWANGE 11 – 13 MARCH 2013

 

 

 

Criminal Trial

 

 

Miss N Ngwasha for the state

Mr T. Nkala for the accused

 

 

 

MAKONESE J:        The accused, aged 28 years, is facing a charge of murder. 

The allegation being that on 24 November 2014 and at Chabukhowa village, Chief Pashu, Binga, the accused unlawfully and intentionally killed Peter Mudimba by striking him on the back of the head, and above the left ear using an axe.  The accused pleaded not guilty to the charge of murder and tendered a limited plea to the lessor charge of culpable homicide.  The state rejected the limited plea and the matter proceeded to trial.

The state case was fairly straight forward and most of the issues were not disputed and are common cause.  The state opened its case by tendering a state outline (Exhibit 1).  It shall not be necessary to repeat the entire contents of the summary of the state case which now forms part of the record.  The defence outline was read into the record and marked (Exhibit 2).  The accused’s defence outline is set in the following terms:

“At the trial of this matter, the accused will plead not guilty to contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] murder leveled against him but guilty to culpable homicide and will state the following in his defence:

 

1.         That his wife had spent seven days away from home and that she had left a 2 year old baby behind and he had no idea as to where his wife was.

2.         That sometime in September 2014, he had caught his wife red-handed having sexual intercourse with one Enock Muleya in their matrimonial hut and matter was yet to be resolved.

 

3.         That he suspected his wife was unfaithfully and having an affair with the now deceased.

 

4.         That he was having a domestic dispute with his wife for a period of about five months prior to the fateful day.

 

5.         That he was overcome by anger and emotions due to cumulative domestic disputes with his wife and suspected that his wife was having an affair with the now deceased.

 

6.         That he did not intend to kill the deceased but acted in a fit of rage.

 

Wherefore, accused will pray for his acquittal on the charge of murder but be found guilty of culpable homicide.”

 

The next documentary evidence is the accused’s warned and cautioned statement (Exhibit 3).  It is necessary to set out the contents of this statement which, was recorded at Hwange on 8 December 2014.  The statement is in the following terms;

“I admit to the charge of killing Peter Mudimba.  It was on 24 November 2014 at my own homestead, Chabukhowa village, Chief Pashu inside my bedroom hut.  I struck him first on the back of the head and he fell on to the ground and I got out of the hut.  I returned back in the hut and found him having difficulties in breathing and struck him again with an axe above the left ear and he died.  The reason of killing the deceased is that Samukeliswe Mpofu my wife advised me that she had consensual sexual intercourse with her once with him on the way.  I then hid the axe at the side of the homestead next to “Mqokolo” tree after wiping off the blood.”

 

            The accused’s warned and cautioned statement was confirmed by a magistrate.  The state then tendered an affidavit by Edson Chikunguru, a Constable in the Zimbabwe Republic Police confirming that he had collected the body of the deceased from the murder scene to United Bulawayo Hospitals (Exhibit 4).  A Post Mortem Report (Exhibit 5) prepared by Dr Sanganai Pesanai details the cause of death as:

(a)        brain damage

(b)        multiple skull fractures

(c)        chop wounds

(d)       homicide

            On further marks of violence, the Post Mortem Report reflects that there was a chop wound on the left temporal region oozing brain matter (8 x 2) cm and a chop wound on right occipital region (8 x 1) cm

            The last exhibit was the murder weapon, the axe (Exhibit 6).  The state led oral evidence from its first witness Siyamukelisiwe Mpofu.  She testified that the accused was her customary law husband, although no lobola had been paid to her parents.  They started living together around March 2014.  She is only aged 20 years.  She met accused at Nkayi.  After they fell in love they moved to Binga where they stayed with accused’s step father for a period of four months before they left to establish their own rural home in the same area.  The witness told the court that their relationship ran into problems as soon as they left accused’s step father’s home to live on their own.  She testified that their first problem was that accused was married to another woman.    The witness referred to her as the senior wife.  The senior wife Sithengisiwe Sibanda left accused as soon as the witness set up their home.  The relationship suffered further problems as accused constantly accused the witness of admiring other men.  The situation was so bad that accused would follow the witness wherever she went.  The witness said accused forced her to admit that she was attracted to other men.  The parties’ relationship was not peaceful to the extent that the witness would constantly leave the matrimonial home to seek refuge with accused’s relatives.  It was the witness’ evidence that she was subjected to beatings regularly.  She was accused of having an affair with a number of men in the area.  She was accused of having boyfriends at Kamativi Police.  She was accused of having been in a relationship with one Enock Muleya.  She was accused of having a fling with several other men including her father in law Jacob Mudenda.  A few days before the fateful day the witness was assaulted by accused.  At first she decided to flee to her father in law’s homestead but on second thoughts she decided to go and report the matter at Kamativi.  She spent three days at the police station before a neighbourhood watch committee member (the deceased) was assigned to attend to the mater.  The deceased was instructed to go to the Chief’s place where he would obtain a letter summoning the accused to attend at the Chief’s court.  The witness left Kamativi in the company of the deceased and spent another night at the Chief’s place before proceeding to her homestead.  On the way she met with accused person who indicated that he was on his way to to report her absence from home at the Chief’s court.  The deceased informed accused that he was actually on assignment to attend to their domestic dispute and that he intended to have a discussion with his father in law before they returned to the Chief’s court.   The accused, the deceased and the witness proceeded to see the accused’s father in law.  Upon arrival at Jacob Mudenda’s homestead the deceased explained the nature and purpose of his visit.  He indicated that they would go and collect the witness’s clothes from her homestead, and would pass through updating Jacob Mudenda about the matter.

            From Jacob Mudenda’s homestead accused, deceased and the witness proceeded to accused’s homestead to collect clothing items for the witness.  Once at the homestead, the witness observed that there was no property at the homestead.  Accused informed the witness that he had hidden all the household goods and clothes in the bush because he was afraid she would bring the police and take away all the goods and clothing.  Accused advised the witness to carry the property half way to the homestead and he (the accused) would carry it the rest of the way.  The witness observed that the accused was not placing the property inside the house but placing it outside.  When all the property had been collected from the bush accused confronted the witness holding a kitchen knife.  He demand to have sexual intercourse with her and she complied because of threats.  Accused indicated that he suspected that she had already had intercourse with the deceased on the way to his homestead.  The accused then told the witness that deceased had already gone back and that he had given him their generator.  The witness confirmed that once they got back to the homestead that the deceased was nowhere in sight.  The last time the witness saw the deceased alive was when he was seated outside their homestead under a tree.   The witness realized that the bedroom hut was padlocked.  Then accused instructed the witness that they should leave the place immediately.  They proceeded to Witness Muleya’s homestead where they took a bath, ate some food and then boarded a commuter omnibus.  Accused hinted that they might go to Plumtree but he later said they would go to Zambia instead.  On 25 November 2014 the witness and accused arrived at Mlibizi Fishing Camp.  Whilst there they were given shelter by a certain man who lived with his two wives.  After a few days at Mlibizi the accused confessed to the witness that he had killed the deceased.  The accused told the witness that he blamed her for the death of the deceased because he suspected that she was having sexual relations with the deceased.  The witness then alerted villagers about the killing, leading to the arrest of the accused.

            The evidence of Siyamukelisiwe Mpofu was credible and consistent.  There were no material contradictions or exaggerations.  Her evidence corroborates to a large extent what accused himself admitted in his evidence in chief in court.  We accept the evidence of this witness as being worthy of belief.

            The next witness for the state was Jacob Mudenda.  The accused is his step-son.  He adopted him as his son at the tender age of one year six months old.  He knew the first witness as her daughter in law.  He confirmed however that no matrimonial formalities were conducted as no lobola was paid to the first witness’s family.  The witness described the relationship between accused and the first witness as being a stormy one.  He confirmed that the accused was extremely jealousy and constantly accused his wife of having affairs with other men.  He testified that the accused was so jealousy to the extent that wherever his wife went he followed her.  He went with her to fetch water.  He went with her to the fields and he did not permit her to converse with other men.  She was virtually in captivity.  Her daughter in law was regularly assaulted and she would seek refuge at his homestead.  On 24 November 2014 around 3pm he found the accused, the deceased and Siyamukelisiwe Mpofu at his homestead.  The deceased had a message for the witness from Chief Pashu.  The deceased indicated that he was going with accused and his wife to their homestead to collect the first witness’s clothes.  The deceased promised to pass through on this way back and update him on the matter.  The witness waited for the return of the deceased but he did not return.  At around 5pm the witness decided to go and find out whether there had been a problem.  He said that he suspected that because of his past violent history, the accused could have assaulted or harmed the first witness.  Jacob Mudenda told the court when he arrived at accused’s homestead he realized that the place was deserted.  He formed the opinion that noone had spent any time at the homestead.  There was no sign of a fire having been lit and the bedroom hut was locked.  The witness became suspicious and anxious.  He peeped through the window of the bedroom hut.  He was horrified to see the body of the deceased inside the hut lying on the floor.  There was blood on the side of the deceased’s head.  There were blood stains on a piece of cloth covering part of deceased’s body.  Jacob Mudenda alerted villagers about the death of the deceased before proceeding to make a report at the Chief’s place.  A report was later made to the police.

            The evidence of this witness was clear, consistent and credible.  There was no tinge of exaggeration.  The witness had no motive to lie.  He considered accused as his son.  He had nothing to gain by misleading the court.  We accept his evidence as a true reflection of the events leading to the death of the deceased.  His evidence corroborated the evidence of Siyamukelisiwe Mpofu in all material respects.

            The state made an application to have the evidence of the following witness as contained in the summary of the state outline to be admitted into the record in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], namely:

(a)        Marvellous Dube

(b)        Kudzai Matombo

(c)        Dr S. Pesanai

            The defence acceded to the request by the state and accordingly the evidence of the aforesaid witnesses was introduced into the record by way of formal admissions.

            The state closed its case and the defence led evidence from the accused who gave evidence in support of his defence case.  The accused gave a very graphic description of how he attacked and killed the deceased.  He gave a clear summary of what happened moments before the deceased lost his life.  In summary he stated that he had a struggle with the deceased inside the bedroom hut deceased had kicked him just below the rib cage.  He had retaliated in self defence and picked up an axe which was lying around.  As deceased turned his back against him he had struck the deceased at the back of the head with the axe.  He went out of the hut briefly and when he came back he noticed that the deceased was still alive because he was uttering some inaudible words.  Accused says that he observed that the deceased who lay prone on the floor of the bedroom hut was attempting to pick a metal pipe.  Accused says he delivered the second blow below the deceased’s right ear using the axe.  At that stage accused says he concluded that the deceased was dead.   He proceeded to lock the door to the bedroom hut before fleeing the homestead.

            It is apparent that the manner of killing is not in dispute.  What is in dispute is why the accused committed the murder.  Accused’s testimony is to the effect that prior to 24 November 2014, his marriage with the Siyamukelisiwe Mpofu was a rocky one.  The accused cited as the main problem, his wife’s tendency to be attracted to other men.  The accused told the court that his wife confessed to him that she had some kind of demonic attraction to other men including his own step-father.  The accused said that his wife (first witness) would frequently disappear from the matrimonial home for several days.  He suspected she had affairs with married police officers based at Kamativi.  He said he had caught her having sexual intercourse with Enock Muleya and that the matter had not been resolved.  The accused mentioned that his wife had told him that the deceased was the only man who could satisfy her sexually.  The accused spoke at great length about his wife’s alleged attraction to several and many men.

            The accused’s defence was mounted on several fronts.  These are as follows:

            The accused stated in his defence outline that he was overcome by anger and emotions due to cumulative disputes with his wife and suspected that his wife was having an affair with the deceased.  In his warned and cautioned statement (Exhibit 3) accused states that reason he killed the deceased was that his wife had advised him that she had consexual sexual intercourse with the deceased.  The accused raised a new defence of self defence in his evidence in chief.  For the very first time the accused suggested that he had struck the deceased with an axe because he was under imminent attack from the deceased.  He stated for the very first time that he had been kicked by the deceased.  The picture that emerges is that the accused was inventing his defence at every stage of the case.

            It is settled law that the state must prove its case beyond reasonable doubt.  Where the accused person raises a defence, the court should not reject such defence unless the version cannot reasonably be possibly true.  I shall examine each of the defences proffered by the accused.

 

Self defence

For this defence to succeed the accused must show that he was under imminent attack.  He must establish that the action he took to defend himself was reasonable.  The accused totally failed to show that he was under any attack.  The defence was clearly an afterthought and a recent creation.  We reject this defence as false.  Section 253 of the Criminal Law Codification and Reform Act [Chapter 9:23] provides as follows:

“ (1)     Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if:

 

1. when he or she did or omitted to do the thing, he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent; and

 

1. he or she believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack; and

 

1. the means he or she used to avert the unlawful attack were reasonable in all the circumstances ---.”

 

Putative Private Defence

Under South African Criminal Law putative self defence is available to an accused who believes that he has a right to defend himself against an unlawful attack, the author J Burchell, in his book, Principles of Criminal Law (4^th Edition) at page 400, states the position as follows:

“The objective test of private defence has the consequences that the court may decide that although the defender believed that he was entitled to engage in a defensive attack, objectively viewed the situation was not one in which he was justified in resorting to a defence or, if he was, the steps taken in defence exceeded what was necessary to repel the attack.

 

Provocation

The accused should show that he acted as a direct result of the provocation.  It is surprising to note that accused was not provoked by Enock Muleya whom he alleged he found being sexually intimate with his wife on his bed, in his house and yet he wants the court to believe that he was provoked by the deceased because had seen him holding hands with his wife, several hours before the murder.    The accused’s conduct defies logic and the defence of provocation has no foundation.  The requirements of this defence are canvassed under section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

            The Post Mortem Report indicates that the deceased had chop wounds on the back of the head and a chop wound on the left temporal region, with brain matter oozing.  The nature and seventy of the injuries prove beyond any doubt that the accused’s sole objective was to kill the deceased.  Accused even confessed that when he realized that accused was still breathing he struck him again.  His fixed objective at that stage was to complete his mission and extinguish the life of the deceased.  He proceeded to padlock the door to bedroom hut to ensure that in the unlikely event that the regained conscious, he would find himself trapped inside the locked house and naturally die.

            We are satisfied, that on the evidence led, particularly the graphic explanation by the accused of how he executed the attack on the deceased, his intention was to cause the death of the deceased.  The state proved its case beyond reasonable doubt.  The accused is accordingly found guilty of murder with actual intent.

 

Sentence

The accused has been convicted of murder.  The accused committed a heinous murder.  He was motived by deep seated jealously and a high degree of possessiveness. He killed the deceased in a most brutal fashion, striking him twice on the head with the sharp edge of the axe.  The first blow was directed behind accused’s head and caused the deceased to fall to the ground.  Realizing that the deceased was still breathing, the accused delivered a second blow below the left ear, causing brain matter to ooze.  Accused acted mercilessly and showed no regard for human life.  The life that was lost is irreplaceable.  The courts have consistently stated the need to uphold the sanctity of human life.  The court shall take into account all that has been stated in mitigation by accused’s legal counsel.  The sentence the court shall impose must fit the offence and the offender.  I have taken into account that accused is partially disabled in that his right leg is shorter and thinner.  He suffers discomfort if he walks long distances.  Accused did accept killing the deceased and showed some measure of remorse and regret.

            An appropriate sentence is as follows:

            Accused is sentenced to 30 years imprisonment.

 

 

National Prosecuting Authority, the state’ legal practitioners

Dube and Company, accused’ legal practitioners