HC (CRB) 41/15
IN THE HIGH COURT OF ZIMBABWE
TAKUVA J with Assessors Mr P. Damba & Mr S. Hadebe
BULAWAYO 18 & 19 FEBRUARY & 26 APRIL 2016
Miss N. Ngwenya for the state
N. Mashayamombe for the defence
TAKUVA J: This unfortunately is yet another senseless and cruel crime of selfish passion that this court has to deal with. The accused was charged with murder in that on the 26th day of December 2013 and at house number 6821 Nketa 9 Bulawayo the accused did wrongfully, unlawfully and intentionally kill and murder Simbarashe Denhere a male adult. The state alleges that on the fateful night the accused stabbed deceased once on the left side of the chest using a kitchen knife. It is common cause that accused and deceased had been living as husband and wife for 6 years prior to the commission of the crime. Accused and deceased were in a tumultuous relationship characterised by frequent fights over accusations and counter accusations of suspected infidelity. Deceased and accused were on a drinking spree on the fateful day. They returned home in the wee hours of the 26th December drunk. Once in the bedroom, they started quarrelling and the quarrel degenerated into a fight. A co-tenant, Munyaradzi Gwezuva was alarmed by the noise and entered the bedroom. He managed to break up the fight by positioning himself in between the protagonists. At that stage accused picked up a kitchen knife and fatally stabbed deceased in the chest. Deceased died on his way to hospital and accused was arrested.
The accused pleaded not guilty. In her amended defence outline which was produced as exhibit 2 she stated that she would plead not guilty to murder but guilty to culpable homicide. While admitting that she stabbed the deceased as alleged by the state, she contended that she did not intend to kill the deceased since she was acting in self defence. Further, she stated that she was unable to fully comprehend her actions due to the excessive intake of alcohol on the day in question and had been subjected to consistent physical and verbal abuse by the deceased prior to the altercation on the day in question. Finally, it was contended that accused acted out of a combination of anger, provocation and drunkenness in stabbing the deceased.
The State rejected accused’s limited plea, and the matter proceeded to trial. The State Counsel then produced the following exhibits. Exhibit 1 which is the summary of the state case sets out the facts. It was read into the record and I do not wish to reproduce it. I have already referred to the 2nd exhibit which is the defence outline. The 3rd exhibit is accused’s confirmed warned and cautioned statement in which she claimed to have stabbed deceased in self defence after he persistently attacked her unlawfully with a fan. She said when she picked up the knife she thought it was a “cooking stick”.
Exhibit 4 was an affidavit by Edson Chikunguru signed in terms of section 260 (4) of the Criminal Procedure and Evidence Act Chapter 9:07. The Constable identified the body of the deceased to Dr S. Pesanayi in the mortuary at United Bulawayo Hospitals.
Dr Sanganai Pesanayi compiled exhibit 5 which is a post mortem report. In that report, he concluded that the cause of death was:-
- Haemorrhage shock
- Stab wound Aorta
He also observed that there was +/- 80mls of blood in the heart. There was bilateral Haemothorax i.e. 900mls on the right lung and 1500mls in the left lung. His other remarks are that the “post mortem is consistent with bleeding to death due to stab wound with a sharp object. Knife went through the second left intercoastal space cutting through the cartilage.”
The knife was also produced by consent as exhibit 6. It is a very sharp steak knife with the following dimensions:
- Weight - 0.35kg
- Total length - 22cm
- Length of blade - 11.5cm
- Length of handle - 10.5cm
This knife has a teppering sharp tip or end.
Munyaradzi Gwezuva was the State’s 1st witness. He resides at house number 6821 Nketa 9 suburb in Bulawayo. Both accused and deceased were also tenants at that house. He had known both as husband and wife for 3 years prior to this incident. On the 25th December 2013, he was informed by both the accused and deceased that they were leaving for Harare on a private visit. Later, he was informed that they had abandoned their trip as the car could not be repaired. The deceased then told him to buy some beer which he did.
When the witness phoned the two in the evening, he spoke to the accused who said they were coming home. They later arrived at around 0300 hours and they drank beer for approximately an hour before deceased started dozing off and accused took him into their bedroom. The witness and one Farai Moyo remained in the dining room drinking beer. The witness later entered his bedroom but before he fell asleep he heard the sound of something falling down in accused and deceased’s bedroom. He peeped and heard accused saying to deceased “you are disrespecting me.” He decided to find out what was happening inside. When he entered the room, he found the two fighting and he immediately got between them at the same time asking what they were fighting over. Deceased told the witness to ask the accused as he had done nothing wrong. The deceased said the accused was insane and they advanced towards one another in order to resume the fight. The witness blocked the accused’s way but in the process lost balance due to intoxication and accused and the witness fell down. The accused tried to extricate herself from the witness’ grip but the witness pinned her down resulting in accused biting the witness on the neck. The witness released her. When he got up he enquired from the deceased why they were fighting. There was no reply and when he turned to face accused he saw something “glittering” in accused’s hand. He unsuccessfully tried to disarm her. Accused, who was in front of the witness reached over him and stabbed deceased who was behind the witness. After being stabbed the deceased cried out “Makhabo you have injured me” holding his chest. Deceased fell down near the bed and other tenants came in. The witness phoned for an ambulance and the police, while accused carried the deceased on her back towards Nketa 6 garage. On the way, the witness also carried the deceased on his back but realised at some stage that deceased was no longer breathing and he placed him on the ground. The police and ambulance crew arrived and they announced that deceased had died.
Under cross-examination, the witness said he did not see where the accused took the knife from. As regards the relations between accused and deceased, he said they were in the habit of quarrelling and fighting over deceased’s alleged infidelity. Accused used to allege that deceased had many girlfriends. On the night in question, both accused and deceased were “moderately” drunk. According to him the pair would fight at least once every month during the 3 year period he stayed with them. When asked how accused was able to stab deceased while he was in between the two of them, he said the deceased was taller than him while the accused is shorter that him. This according to the witness made it possible for the accused to jump and deliver the fatal blow. The witness did not see the deceased assault the accused with a fan, although he agreed that he saw a broken fan on the floor when he entered the room. Finally, he told the court that he was cut on the wrist by the accused as he tried to disarm her of the knife.
As regards the circumstances surrounding the stabbing, the state relied on the evidence of a single witness.
In S v Banana 2000 (1) ZLR 607 (SC), GUBBAY CJ (as he then was) had this to say:
“It is of course, permissible in terms of section 269 of the Criminal Procedure and Evidence Act Chapter 9:07 for a court to convict a person on the evidence of a single, credible and competent witness. The test formulated by De VILLIERS J P in R v Mokoena 1932 OPD 79 at p 80 is that the evidence of a single witness must be clear and satisfactory in every material respect.”
In our view, Munyaradzi was a convincing witness. He gave his evidence confidently without any palpable bias or exaggeration. For example, he frankly told the court that he found the accused and deceased exchanging blows and that at one time deceased threw a punch after the accused had advanced towards him. Further, he said he did not see how accused armed herself with the knife. If this witness was biased he could have said he saw accused pick up a knife and advance towards the deceased.
Also there is sufficient corroboration of this witness’ testimony. This support comes from the other person who witnessed the stabbing namely the accused herself. She agreed with this witness that when he entered the room he found them exchanging blows. She also admitted that she bit the witness on the neck and that she jumped and leapt forward in order to reach the deceased who was standing behind the witness. Finally, she corroborated Munyaradzi’s evidence on their incessant fights and that on the day in question she was moderately drunk. For these reasons, this court does not find it hard or difficult to believe Munyaradzi’s testimony. We accept his evidence in toto.
The second state witness was Alice Phiri who is deceased’s mother. The witness simply narrated the events that occurred when deceased and accused visited her late that night. They discussed a number of issues including the woman deceased said he had impregnated. At one time accused’s phone rang and she went outside to answer it. Deceased wanted to spend the night at the witness’ house but accused insisted that they go to their house. They eventually left but accused appeared angry over the pregnancy issue. She described the accused as a “cheeky” person. In our view, the bulk of this witness’ evidence is character evidence which is generally inadmissible. She does not have relevant evidence as regards what transpired on the night in question when deceased was stabbed. Her evidence on the motive for the murder is purely speculative. She was totally overcome by emotion to the extent that she did not hide her dislike of the accused. Her testimony on the nature of the relations between accused and her son coincides with that of Munyaradzi and the accused. We therefore accept this latter portion of her evidence together with the discussion she held with deceased in the presence of the accused.
After this witness the State Counsel applied for the evidence of the rest of the witnesses to be admitted in terms of s 314 of the Criminal Procedure and Evidence Act Chapter 9:07. The Defence Counsel did not oppose the application and the evidence of the following witnesses was so admitted:-
- Farai Moyo
- Tessa Gumiremhete
- Stanely Chiwani
- Ebias Govhi and
- Dr S. Pesanai
The state then closed its case and the accused gave evidence in her defence. The accused said her parents separated when she was 4 months old. She grew up in Kwekwe with her mother. The deceased met her in Kwekwe and brought her to Bulawayo. Accused managed to complete primary education only. She told the court that she is also known as Chipo Makhabo. Accused and deceased were cohabiting for 6 years before this offence and during this period they used to engage in physical fights when drunk.
On the day in question accused and deceased had planned to go to Harare but before they embarked on the trip they had to first have the motor vehicle they were going to use repaired. She said she started drinking castle beer at 3pm. When they were in Richmond her phone rang and the caller said she wanted to speak to Simba her husband. Later the same caller sent a message asking why she did not leave the deceased alone. Upon deceased’s return, they quarreled over the message. They then visited her mother in law at Nkulumane where they had supper. Later they arrived home at approximately 03:00 hours and she went straight to bed. Deceased entered the bedroom and woke her up saying they should discuss the issue they had not finalised. When she remained lying down, deceased slapped her twice and she got up and pushed him away. Deceased pushed and kicked her. He later removed the top part of the fan and assaulted her with the handle until the base separated from the stand. She fell down and picked up a ½ brick which she threw at the deceased.
According to her Munyaradzi entered the room while she was on the floor and he asked her what was happening. She then told him that the deceased was being disrespectful of her. Munyaradzi stood in between them and she told him that deceased was disrespecting her by giving her phone number to his girlfriends. As regards how she armed herself with a knife, she said she simply stretched her hand to a stand where knives and cooking sticks are kept and took it without realizing that it was something “dangerous”. At that stage, Munyaradzi held her hand and she bit him on the neck. She then said, “I got free … and he tried to get hold of my right hand but he failed. I leapt over to the deceased who was over the other side of Munyaradzi. After I had done that Munyaradzi said you have injured someone. I was startled …” After that they then phoned the police and ambulance. She carried the deceased on her back and later Munyaradzi did the same. The deceased died on the way to hospital before the ambulance arrived. She said she regretted what she had done.
Under cross-examination, she admitted that their union was far from being rosy as they would fight every month over what she believed was deceased’s infidelity. At one time she reported these assaults to the police. She also told her mother who advised her to return home but she disregarded that advice because she wanted to be married. Asked why in her warned and cautioned statement she had said it was the deceased who was accusing her of having boyfriends and yet in her defence outline she said it was deceased who had girlfriends, she said she left out some of the things when she gave the warned and cautioned statement to the police. As regards why they fought that morning, the accused said the following: “I asked him why his girlfriends were phoning me. This was after he woke me up. I said he was disrespecting me and he then said he had every right to take whatever number of women he wanted. We started fighting.”
The accused admitted that when Munyaradzi entered their bedroom he found them exchanging blows and not that she was lying down as she had portrayed in her evidence in chief. Finally, she admitted that she aimed at deceased’s chest in order to hurt him out of anger. She agreed with Munyaradzi that she was moderately drunk on the day in question.
Facts that are common cause
- that accused and deceased had been living as husband and wife for 6 years prior to the commission of the crime.
- that accused and deceased were in a frosty relationship, characterised by frequent fights over accusations and counter accusations of suspected infidelity.
- that both were on a drinking spree on the fateful day. They returned home in the wee hours of the day moderately drunk.
- that once in their bedroom, they started quarrelling which quarrel degenerated into a fight.
- that a co-tenant, Munyaradzi broke up the fight by positioning himself in between the two protagonists.
- that accused at that stage picked up a knife and fatally stabbed deceased in the chest.
- that the deceased died on Munyaradzi’s back on their way to hospital.
- that at the time accused stabbed the deceased, the latter was unarmed.
- that the deceased died from injuries arising from accused’s conduct.
Facts in issue
In deciding which facts are in dispute, the court has to bear in mind that it is only relevant facts that should be considered. In casu, we find these to be.
- whether or not deceased assaulted accused with a fan?
- whether or not accused knew that the object she picked up was a knife?
- whether or not accused intentionally killed the deceased?
- whether or not in stabbing deceased accused acted in self-defence?
- whether or not accused was so provoked to such an extent that any reasonable person in her position and circumstances lost self-control?
Findings of fact
- As regards the first factual dispute, we note that the evidence of how the fight started and progressed before Munyaradzi’s intervention comes from only one person, namely, the accused. Consequently, the court has no other version to compare with that of the accused. The court accepts that the fan could have been used by the deceased but does not accept the extent to which accused alleges it was used, namely that deceased “battered” her with it until it broke. We are of the view that accused was exaggerating her evidence in this regard. We say so for the following reasons:
- the accused would have sustained serious injuries if the fan had been used to assault her until it “broke”. It is common cause that she did not sustain any serious injuries. This is inconsistent with her version.
- Munyaradzi said he was alerted by the sound of something falling down in the two’s bedroom. When he got there, he found the fan on the ground with its top removed. We find therefore that this sound was from the falling fan.
- Accused denied realizing that what she picked up and used to stab deceased was a knife. Her evidence in this regard is incredible. While denying this fact in her evidence in chief she admitted under cross-examination that she realised that it was a knife. Also, when asked by the State Counsel why if she thought what she was holding was a cooking stick she delivered a stabbing blow instead of a strike motion (i.e. up and down motion), all she could say was; “I apologise. I accept it.” She did not say on which basis she believed that what she was holding was a cooking stick. Also a cooking stick would not have “hurt” the deceased in fulfillment of her alleged intention to “just hurt” him. The accused admitted that she knew that there was such a knife as exhibit 6 on that table.
Her version is incredible in that, firstly, if Munyaradzi saw that it was a “glittering object” why was she unable to see that as well, in view of the fact that the room was well illuminated. Secondly, the texture and size of a cooking stick are completely different from that of a steak knife. Accused should have felt the difference and by inference, did feel and appreciated the difference.
For these reasons, we find that the accused is an incredible witness whose evidence on this aspect is not worthy of belief, we find as a fact that when she took that knife, she knew it was a knife. We also find that the purpose of picking that knife up was to use it to stab the deceased.
- The accused denied that she intended to kill the deceased, contending instead that she only wanted to “hurt” the deceased. The question then becomes how does one hurt another by pushing such a dangerous weapon into another’s chest? Intention to kill is in most cases established inferentially from surrounding circumstances. In casu, on the admitted facts, and the post mortem report, it appears that the inference is not hard to make. However, in view of the defences raised by the accused, namely self-defence and provocation it is logical and desirable to first tackle these defences before making a finding on the issue of intention.
- As regards self-defence, the accused’s evidence that is relevant is that at the time she delivered the blow, the deceased was “throwing punches at her since he was taller than Munyaradzi.” However, she agrees with Munyaradzi that when he intervened, he grabbed her and both fell down. Whilst on the floor she bit him on the neck after Munyaradzi pinned her down. Munyaradzi let go of the accused and she got up, took the knife and stabbed both Munyaradzi and the deceased in the process. Surely, this sequence of events demonstrates beyond any reasonable doubt that at that stage, the accused was the aggressor. The accused does not deny that she stabbed Munyaradzi when he tried to disarm her. Further, the accused while admitting that she was standing next to an open door, fails to explain why she did not simply walk out when the fight had been stopped by Munyaradzi. Compared to Munyaradzi’s version, the accused’s evidence is hard to believe. We find therefore that at the time accused stabbed the deceased, the latter was not attacking the former. If at all deceased threw a punch at this stage, it was in self-defence.
- In respect of the defence of provocation, the accused’s evidence is contradictory and unconvincing. In the closing submissions, it was contended by Mr Ndongwe that the accused is a “short tempered person and can easily be proved (sic). The slap and battering by the deceased with a fan till it broke so much provoked her that she lost complete control of herself, resulting in her biting Munyaradzi Gwezuva and stabbing the deceased.” We are not persuaded by this argument for a number of reasons.
Firstly, these facts are consistent with self defence rather than provocation. Secondly, this is not the basis upon which the accused relied on, in her evidence in chief and under cross examination.
Accordingly, we therefore find that the accused gave conflicting versions of the sort of conduct she alleged to be provocative. In any case we find that if at all there were calls and or messages, these events occurred during the previous day whether the murder occurred on the following morning. We further find on accused’s own evidence that she is the one who introduced this topic shortly before they fought in their bedroom. Due to the highlighted contradictions and imperfections in accused’s evidence, we find that her evidence is unreliable and we reject it.
Murder is defined in section 47 (1) of the Criminal Law Codification and Reform Act Chapter 9:23 (the Code). Its ingredients are that an accused commits this crime when he or she causes the death of another person, (a) intending to kill that other person or (b) by continuing to engage in conduct after realising that there is a real risk that the conduct may cause death. Where the accused intends to cause death, he is guilty on the basis of actual intention. On the other hand where he does not have actual intention to cause death, but he realises that there is a real risk that death would result, he is guilty on the basis of what used to be referred to as legal intention. See S v Mugwanda 2002 (1) ZLR 574 (S) 581D – F.
On the basis of findings of fact including facts that are common cause listed above, it is clear to us that by plunging the knife into the deceased’s chest, the accused foresaw the death of the deceased as a real possibility but proceeded regardless. Put differently, the accused realised that there was a real risk that death would result, but continued to stab deceased in the chest with a very dangerous weapon. We find therefore that all the essential elements of murder have been proved by the state.
Notwithstanding this finding, the court is required by law to consider all defences that have been specifically pleaded including possible defences suggested by the evidence. The 1st defence pleaded is self-defence. Section 252 of the Code provides for this defence. The position of our law is that it is permissible to inflict harm upon unlawful attackers as long as such harm was reasonably necessary to ward them off. This can be a complete defence if all its requirements are met. These requisites are captured in s 253 of the Code. In summary, they are:
- when the accused engaged in the conduct he believed on reasonable grounds that the unlawful attack had commenced or was imminent;
- the accused believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she would not otherwise escape from or avert the attack;
- the means used by the accused to avert the unlawful attack were reasonable in all the circumstances;
- any harm or injury caused by the accused’s conduct was;
- caused to the attacker and not to any innocent third party; and
- was not grossly disproportionate to that liable to be caused by the unlawful attack. See S v Banana 1994 (2) ZLR 271 (S); S v Mandizha S-200-91.
In applying the law to the proved facts, the court has to avoid adopting an armchair approach. See S v Phiri S-190-82. As regards the first requirement, the evidence shows that the unlawful attack had stopped. It is common cause that Munyaradzi stopped the fight. Accused, however took that opportunity to arm herself and proceed to stab the deceased. In respect of the second requirement, again on the facts found proved, the accused’s belief that her life was in danger was unreasonable. In any case, accused had an opportunity to escape or avert he danger. The accused admitted that the door was open and she was standing near the door. When asked by the state counsel why she did not run away when Munyaradzi stopped the fight she could only say “I did not think of that.” Munyaradzi’s evidence paints a picture of the accused as an aggressive person who intentionally started the second round of the fight by advancing towards the deceased. The accused did not use reasonable means to avert the unlawful attack. It was totally unnecessary to resort to the use of a knife. The deceased was not armed. There is no evidence that the accused came out second best in the fight. To the contrary, the evidence points towards an extremely violent conduct in which the accused was itching for a fight. The injury caused to the deceased as shown by the post mortem report was grossly disproportionate to that liable to be caused by deceased using clenched fists. Further, accused’s conduct caused an injury on Munyaradzi who was an innocent third party. On the evidence in its totality, the State has successfully rebutted the defence of self-defence.
Accused also raised provocation as a possible defence. Section 239 (1) of the Code provides that provocation may be a partial defence to a charge of murder if “He or she has the intention or realization referred to in section forty-seven but has completely lost hi/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.” See also S v Dzaro 1996 (2) ZLR 541 (H).
In the present case, the proved facts are that the accused was not provoked at all by the deceased. Even assuming accused acted under provocation, the evidence shows that she did not lose her self control in that she answered Munyaradzi’s question in a meaningful manner. She exhibited a lot of dexterity in extricating herself from Munyaradzi’s grip. Thereafter she looked for a weapon which she effectively used. Her behaviour after the attack shows that she was in full control of her faculties despite her hot temper. Put differently, a reasonable person, faced with the sort of taunt accused referred to would not have lost self-control. According to the accused, this was not the first time that such events had occurred. Munyaradzi also corroborated her evidence by saying in the majority of cases, the cause of the fight was the accused’s allegation that deceased had girlfriends.
In our view, the following submission by Miss Ngwenya for the State aptly summarises accused’s evidence on provocation;
“In respect to the aspect of provocation, accused told the court different versions, in her defence outline she stated that she had received a phone call from a person claiming to be deceased’s wife and that led to a fight between her and deceased and leading to the stabbing of the deceased. In her warned and cautioned statement to the police, she stated that deceased had been accusing her of having boyfriends and kept pestering her about that issue and went on to assault her leading to the stabbing in an effort to defend herself. The accused in her evidence in chief told the court that deceased’s “girlfriend” sent her insulting messages on her phone telling her to leave deceased alone.
It is the state’s submission that accused’s version of events cannot be possibly be believed as her story was fraught with contradictions and inconsistencies throughout. From the evidence led in court, the state is of the opinion that accused failed to show that she was provoked by anything that the deceased might have done or said on that day. If at all the accused had been provoked one would have reasonably expected her to react after the so-called phone calls or messages from deceased’s girlfriend and not the following day. The partial defence as afforded by section 239 of the code cannot be extended to the accused in this case.”
We agree entirely with this reasoning.
Accordingly, the defence of provocation in these circumstances does not apply. Although accused did not specifically plead intoxication as a defence, the fact that it is revealed by the evidence means that this court is required by law to consider it as a possible defence. Voluntary intoxication is self induced in that it occurs where a person becomes drunk as a result of voluntarily consuming alcohol or drugs. The Code, in section 221 (1) provides as follows:
“221 Intoxication No Defence to Crimes Committed with Requisite State of Mind
(1)If a person charged with a crime requiring proof of intention, knowledge or the realization of a real risk or possibility –
(a)was voluntarily or involuntarily intoxicated when he or she did or omitted do anything which is an essential element of the crime, but
(b)the effect of the intoxication was not such that he or she lacked the requisite intention, knowledge or realization: such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.
Applying this to the proved facts, it is our conclusion that intoxication in casu did not negative the mens rea. It is common cause that the accused was moderately drunk. Even her conduct before, during and after the stabbing, does not show that the effect of the intoxication was to prevent her from formulating the requisite intention. For this reason, intoxication as a defence is not available.
For these reasons we find that the accused contravened section 47 (1) (b) of the Code in that when she caused the death of the deceased, she realised that there was a real risk or possibility that her conduct may cause death and continued to engage in that conduct despite the risk or possibility. Put differently, we find the accused guilty of murder with constructive intent.
Reasons for sentence
In assessing an appropriate sentence we have taken into account all the mitigating factors set out by your legal practitioner. In particular we have considered the fact that the accused is a 29 year old female first offender with a chequered past. Further, we have considered the fact that the accused spent three years in custody pending trial. Accused was moderately intoxicated when she committed this crime. She showed a lot of remorse over the death of a man she loved.
However, what we find as aggravating is the needles loss of a young life coupled with the unnecessary use of a lethal weapon. The injuries sustained by the deceased show that the accused used excessive force in that the knife penetrated the chest and injured the heart. This murder is in our view, a senseless one in that the accused tried to enforce sexual morality through the use of violence which is clearly unlawful. It is ironic that the accused changed from lover to killer, demonstrating that between love and hate, the dividing line is very thin indeed. 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 sanctity of human life. It can only do so by meting out suitable penalties to such offenders in the hope that they would act as a general deterrence to members of the public.
Accordingly, you are sentenced to seventeen (17) years imprisonment.
Prosecutor General’s Office, state’s legal practitioner
Mashayamombe & Company, accused’s legal practitioners