STATE

versus

NETSAI MAFUSIRE

HIGH COURT OF ZIMBABWE

MUSAKWA J WITH ASSESSORS

HARARE, 7, 8, 9 and18 June 2010

CRIMINAL TRIAL

T. G. Nyasha, for the state

S. R. Ratisai, for accused

MUSAKWA J: The accused stands charged with contravening section 47 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The correct citation should be s 47 (1) (a) or (b). The offence arose in Mashambanhaka village in Uzumba Maramba  Pfungwe.

The brief facts as summarized in the outline of state case are that the deceased was one of the accused’s two wives in a polygamous setting. On 4^thJuly 2009 the deceased and the accused quarreled wherein the accused made accusations of infidelity against the deceased. The accused lost his temper, armed himself with an axe and tied up the deceased’s hands and legs. He then axed the deceased indiscriminately all over the body. The deceased died shortly thereafter.

The accused’s defence was that on the day in question he had an altercation with the deceased around 9 p.m concerning her infidelity. The deceased had previously been found with cigarettes she could not satisfactorily account for.  The deceased then confessed that their child was not sired by the accused. This incensed the accused as the deceased further told him that she had falsely accused him of having bewitched her. This accusation had previously led the accused to take the deceased for treatment. The deceased in the process further told him that she had in fact had a Depo-Provera injection and was in addition taking some family planning tablets.

As a result of this provocation the accused took a stick from behind the door with which he assaulted the deceased. The deceased managed to fight back as she was bigger than the accused. The deceased by then was armed with an axe which the accused tried to wrest from her. As they grappled the accused turned the axe on the deceased and he has no recollection of how she got injured. He only recalls seeing the deceased sprawled on the floor in their bedroom. In a state of shock the accused tied the deceased’s limbs with a rope in a bid to straighten them as they had been broken.

Afterwards the accused reported the incident to his brother’s wife. From there he followed a footpath that led to his late parents’ home and discarded the axe. He then went to his in-laws’ home where he attempted to commit suicide by ingesting poison.

Maud Date, the accused’s first wife testified to hearing the altercation and later hearing the deceased crying out that the accused was axing her. She then rushed to alert a brother in-law as well as the village head. She did not find the brother in-law but the headman told her they would attend. When she went back she found the deceased seated on the floor with injuries to her hands and legs. There was a lot of blood. A rope was close by on the floor. The deceased asked for water which she availed. Having noted that there was a delay by the headman she went back to seek further help.

Maud Date was not a very forthcoming witness. She gave the impression that she did not know what was going on between the accused and the deceased. The little she did was to confirm that the two’s relationship was rocky. For example she told the court that she once heard from the accused that he had found the deceased with some cigarettes. However, in her own view she considered the issue trivial.

This witness did not abide by her intended testimony as summarized in the outline of state case. In the summary of her evidence it is stated that she heard the accused and the deceased quarreling. She eavesdropped and heard the deceased pleading with the accused not to axe her. She also pleaded with the accused not to axe the deceased. She then heard sounds of an axe chopping several times and the deceased crying for help.

 She departed from this summary during her evidence in-chief. She only stated that she heard the deceased crying that she was being axed and she ran to inform a brother in-law as well as the village head.

The other witnesses to testify for the state were Zvinairo Mafusire who is the accused’s younger brother, assistant inspector Dvetero, the investigating officer as well as Kerina Kanenungo who is an in-law of the accused. This last witness was supposed to testify on the accused’s attempt to commit suicide at their home. However, it turned out that she did not witness the incident. Her statement though purporting to give the impression that she was a direct witness, turned out to be based on what she heard from her father. It is not clear how such potentially grave mistakes are made in the recording of statements from witnesses.

Owen Mafusire the accused’s thirteen year old son testified to hearing the deceased crying out for help. He and other children had retired to bed in the kitchen hut. He heard the deceased crying and saying sorry. He also heard sounds of something being struck. According to him this happened thirteen times. He later went to the deceased’s bedroom hut where he found her seated on the floor with her hands and legs bound with a rope. There was no light in the room. The deceased requested her to untie her. He noted injuries to the leg, hands and on the side of the head. He also provided the deceased with water to drink upon her request. Later he returned to the kitchen hut.

The accused’s evidence was framed along the lines of the defence outline. However, there were other material additions to his defence in the form of the background to this tragedy. He stated that having entertained doubts about the deceased’s fidelity he had taken his case before the local court. As we understood it, the accused wanted the public to hear about his accusations against the deceased. He then divorced the deceased. The deceased took her belongings and went to her parents’ home. The accused was later summoned to the local court where his in-laws reside and his father in-law leveled charges of having cast a spell on the deceased. The divorce was reversed. He was ordered to seek treatment for the deceased. This meant that the deceased would only be accepted back by her parents after she had been healed. A chief’s aide was to accompany the accused and the deceased wherever they sought treatment. He consulted a faith healer who diagnosed that the deceased had been bewitched by those who were jealous of her marriage. Although the healer removed some spells, the deceased was not healed.

He also explained the incident of the cigarettes. He had found the deceased with two packets of Madison cigarettes. Her explanation was that she had done some work for the accused’s nephew at his shop. When he failed to pay her she then snatched the cigarettes from him. The accused was not satisfied with the explanation. The issue was discussed and settled within the family.

Following their divorce the deceased had been staying at his home for a month. They had previously consulted a medical doctor who detected no abnormality with the deceased but nonetheless prescribed some medication. On the fateful day the accused had purchased the prescribed medicine in Murehwa. After supper he went to the deceased’s bedroom where he intended to give her the medication. That is when the deceased told him she was not ill and was on a Depo-Provera injection. She also told him that the issue of him having bewitched her was a ploy by her and her parents to extract compensation from him. As he sought further explanation from the deceased he addressed her by their daughter’s name, Varaidzo. That is when the deceased told him that the child was not his daughter. She further told him that is why she preferred to call the daughter Ethel.

At this stage the accused says he lost his temper. He first took a one metre long stick with which they used to secure the door from inside and started to beat the deceased. He said he just beat the deceased randomly as he was angry. The next thing was that he saw the deceased with an axe with which she attempted to strike him. He then grabbed the axe and they struggled. The next thing he saw the deceased had been injured. He does not recall how the deceased was injured as he blacked out momentarily because of extreme anger.

After noting the injuries he took a rope and tied the deceased’s hands and wound the rope around her body. He did this because the hands were badly injured as the bones were sticking out. He then told the deceased that he was going to her parents’ home where he would kill himself. Having retrieved some rat poison from his bedroom he first proceeded to his brother’s home where he did not find him. Under cross-examination he said the aim was to get a cart and oxen with which to convey the deceased to hospital. However, this contradicts the earlier decision to go and commit suicide at the deceased’s parents’ home. In any event he managed to find transport and went to his in-laws’ home in Chitsungo, some fifty kilometers away where he attempted to take his life. It appears his in-laws were not moved by his threats to commit suicide as they let him attempt to take his life in their presence. He asked for water and ingested the poison but he was later taken to hospital.

The state submitted that self defence cannot be sustained as the deceased was not armed when she was injured. Mr Nyasha initially submitted that this was a premeditated act and thus the accused should be found guilty of murder with actual intent. However Mr Nyasha, having at some stage submitted that the attack by the accused was indiscriminate and reckless in the circumstances, relented and urged the court to return a verdict of guilty of murder with constructive intent. Regarding what is required to prove constructive intent Mr Nyasha cited the case of S v Tazwinga 1968 RLR 121.

On the other hand Ms Ratisai submitted that the evidence led must show beyond a reasonable doubt that the accused had the requisite intent to commit the offence. In this case she submitted that the accused was severely provoked as a result of which he lost control of himself as he blacked out. She submitted that the accused must be found guilty of culpable homicide instead.

 Concerning the defence of black-out Ms Ratisai referred to the case of S v Evans 1985 (1) Z.L.R 95(SC). I must point out that the accused never raised a defence of black out in his defence outline. He only referred to coming out of a trance at the time he realized that the deceased had been injured.

The post-mortem report compiled by Doctor Mugwagwa describes the deceased’s injuries as-‘fractures on the legs and left hand. Several cuts all over the body and head.’ The cause of death is given as resulting from multiple injuries as described.

Although there was no issue regarding the production of the post-mortem report it is not sufficiently detailed in some material respects. The investigating officer stated that he noted the deceased’s body had eleven cuts. The photographs he produced depict some wounds to the legs, hands, chest and head. However, the severity of the injuries is not known. Doctors who conduct post-mortem examinations are normally expected to give details like depth of cuts and amount of force used. In the absence of such details the state should routinely call the doctor to elaborate on his report.

We agree that the defence of self defence cannot be sustained. The accused, by his own admission was the aggressor as he started to assault the deceased with a stick. That act constitutes an unlawful attack on his part. If the deceased tried to use an axe against him self defence could only have been raised by her in the circumstances. In any event, in relation to the accused, if there had been any attack against him he was no longer under such attack the moment he disarmed the deceased. In addition the means used would certainly be immoderately excessive to import intention on his part.

The defence of blackout does not appear to have a sufficient foundation. In the case of S v Evans the appellant was convicted of culpable homicide arising from the collision of the train he was driving with another. It was established the brakes in the train that was driven by the appellant had been applied accidentally. The appellant’s defence was that he had a black-out as he did not recall what happened prior to the accident. Commenting on this defence on appeal, DUMBUTSENA C.J. had this to say at p 99-100:

“The appellant's defence, as already mentioned, is that he had a black-out. He testified to not remembering what happened after he had seen the distant warning signal. He denied having fallen asleep or having applied the air brakes. The appellant was persistent in his defence of a black-out. In reply to the warn and caution he said: "From the time of seeing the amber until after the accident I had a black-out". In his evidence in court he asserted that he had a black-out and could not remember what happened before the accident.

Is this sufficient evidence to establish this type of defence? In Bratty v Attorney-General for Northern Ireland [1963] AC 386 (HL) (NI), a case in which the appellant had told the police that when he was with the girl he had a "terrible feeling" and that a "sort of blackness" came over him, at his trial  three separate defences were left open to the jury, namely, (1) automatism by reason of suffering from psychomotor epilepsy; (2) that he was guilty of only  manslaughter because he was "incapable of forming an intent to murder on the ground that 'his mental condition was so impaired and confused and he was so deficient in reason that he was not capable of forming' such intent; (3) that he was guilty but insane in consequence of suffering from a disease of the mind within the McNaughton Rules". The case is of interest to us because of what was said by Lord Denning about the defence of a black-out at 413-14:   

                It is not sufficient for a man to say 'I had a black-out': for 'black-out' as STABLE J said in Cooper v McKenna, Ex parte Cooper 'is one of the first refuges of a guilty conscience and a popular excuse'.

In R v Dervish [1968] Crim LR 37 Bratty's case was considered with approval by the Court of Appeal (Criminal Division). The commentary on that case explained the above words as follows:

                Of course a jury might, as a fact, be left in real doubt where they have nothing to go on but the bare, unsupported word of the accused person, if he appeared to be a witness of truth; and it would be an artificial rule which debarred them from considering the defence in those circumstances. The requirement of some supporting evidence is based on obvious considerations of policy - otherwise it might be all too easy for guilty persons to procure an opportunity of acquittal on fabricated evidence.

In his book Textbook of Criminal Law 2nd Ed at 663 the learned author Glanville Williams says of this defence:

                Although the 'black-out' defence is legally recognised, it is a defence too easily feigned to be accepted without severe scrutiny. So the courts have laid down that the evidential burden in respect of the issue of non-insane automatism rests upon the defendant, and, moreover, that medical evidence must (where appropriate) be given in its support before the judge is bound to leave this issue to the jury. If there is sufficient evidence  G  (whether coming from the defendant or from the Crown) to pass this 'initial hurdle' - to 'lay a foundation' for the defence, as the judges sometimes say - the jury will be directed that the persuasive burden of proving the mental element rests on the prosecution.

See also Smith & Hogan: Criminal Law 4th Ed at 40.   

There is in the requirement for an accused person to lay a foundation for the defence of black-out some similarity between that defence and the defence of compulsion. In the defence of compulsion the accused should adduce some evidence to show that his mind was overborne by compulsion at the time of committing the offence. Mr Justice BARON ACJ, when considering the defence of compulsion in S v Mapfumo & Ors 1983 (1) ZLR 250 (SC), said at 253F-G what I consider appropriate to the appreciation of the foundation to be laid in the defence of black-out. The learned Acting Chief Justice said:

                There is . . . no onus on an accused person; all that is required is that there emerge from the evidence, whether adduced by the prosecution or the defence, material sufficient to raise the issue in question as a realistic issue, and to speak of this as an onus resting upon an accused, quite apart from its extent, can be misleading.”

In that case the court concluded that accused had laid sufficient foundation for a defence of blackout. It took into account that evidence was led from a doctor who was called by the state. Among other things he was asked on what happens to a person when he experiences a black-out to which he responded that he physically collapses and passes out. It was also put to the doctor the life of a trial driver which he agreed was unusual on account of the irregular shifts, the early hours, irregular meals and lack of adequate sleep. In finding merit in such defence, the learned chief justice went further to say at p 102:

“In my judgment the appellant through Dr Gwisayi, a prosecution witness, laid a proper foundation for the defence by introducing evidence from which it may reasonably be inferred that the appellant suffered a black-out. His evidence alone would not have been sufficient. It seems to me that on this evidence alone the foundation for the defence of a black-out has been laid albeit on a balance of probabilities. On this evidence alone the persuasive burden of proving that the appellant was negligent now rests on the prosecution.”

In the present case we are not persuaded that the accused laid a foundation for such a defence. Apart from his mere say-so there is no other evidence from which one may infer that he experienced a black-out. It is incredible that he could recall how he assaulted the deceased with a stick but could not recall how he assaulted her with an axe. There is no evidence that there was a lull between the assault with a stick and the assault with the axe. In addition, the accused’s son who responded to the deceased’s cry did not find the accused present. We also note that the accused was able to recall what he did after injuring the deceased.

Coming to the defence of provocation, the first thing to note is that by virtue of s 238 of the code, provocation is not a complete defence. The provision on question sates that:

“Except as provided in section two hundred and thirty-nine and subject to any other enactment, provocation

shall not be a defence to a crime but the court may regard it as mitigatory when assessing the sentence to be

imposed for the crime.”

On the other hand, s 239 provides that:

“(1) If, after being provoked, a person does or omits to do anything resulting in the death of a person which

would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation

(a) he or she does not have the intention or realisation referred to in section forty-seven; or

(b) he or she has the intention or realisation referred to in section forty-seven but has completely lost his or

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.

 (2) For the avoidance of doubt it is declared that if a court finds that a person accused of murder was

provoked but that

(a) he or she did have the intention or realisation referred to in section forty-seven; or

(b) the provocation was not sufficient to make a reasonable person in the accused’s position and

circumstances lose his or her self-control;

the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the

provocation as mitigatory as provided in section two hundred and thirty-eight.”

In his Commentary on the Criminal Law (Codification and Reform) Act Professor G. Feltoe has this to say at pp 221-222

“Provocation can be partial defence to a charge of murder but it is not a defence to any other crime, although it can be a mitigatory factor. (Previously provocation could also have been a partial defence to assault with intent to do grievous bodily harm. This no longer applies because the Code has merged together what used to be the separate crimes of common assault and assault with intent to do grievous bodily harm.)

In cases other than murder the defence of provocation operates merely to mitigate sentence.

In murder cases there is a two-stage approach.

The first stage is to decide whether X had intention to kill when he or she reacted to the provocation. If X did not have intention to kill, X will not be convicted of murder but only of culpable homicide.

If X had intention to kill, then the court will proceed to the second stage, which is to decide whether X lost his or her self-control and killed intentionally in circumstances where even the reasonable person, faced with this extent of provocation, would also have lost self-control. If X did lose his or her self-control and the reasonably person would have done likewise, X will have a partial defence and will be found guilty of culpable homicide and not murder. (In South Africa on the other hand if X killed intentionally X will be found guilty of murder and the provocation will only act in mitigation of sentence.)”

This is the approach that was adopted in S v Tenganyika 1958 R&N 228 (FSC) and S v Nangani 1982 (1) Z.L.R. 150 (SC). In Nangani’s case which has a closer bearing to the present case, the appellant and the deceased had lived together for two years and a child had been born from the union. They subsequently separated. When the appellant went to look for the deceased he found her sharing a blanket with a man outside the hut. When the appellant asked who the man was the deceased whispered something to the man who then ran away. The appellant pursued the man and returned to where he had left the deceased. On his way back he met the deceased who started to run away. The appellant who was armed with a rifle then shot and killed the deceased. The appellant was convicted of murder with no extenuating circumstances. The conviction was set aside on appeal and substituted with culpable homicide. This is what FIELDSEND C.J. had to say with regard to the defence of provocation at pp 158-160:

“In Tenganyika v R (supra) the Federal Supreme Court, albeit to some extent obiter, considered a different approach to the problem, perhaps best summarized at page 245 of Burchell and Hunt as follows:   

          "Where the charge is one of murder and there is evidence of provocation, it was held that two separate inquiries must be made. First, was intention to kill present? In making this inquiry account must be taken of all the facts - provocation, intoxication and any other eccentricity or abnormality the accused may have had. And since the test for intention is subjective, at this stage provocation will be considered subjectively. If the court is left in doubt as to whether the intention to kill was present the accused could, at most, be convicted of culpable homicide. On the other hand, if the court is satisfied that the intent to kill was proved, the Federal Supreme court took the view that a second inquiry must be made, namely whether the "provocation which the accused received was sufficient to warrant a verdict of culpable homicide despite The fact that the killing was intentional. On this point TREDGOLD CJ, held the test to be objective 'whether the accused was so provoked that, in the Circumstances, a reasonable man would have float his self-control.'"

The learned CHIEF JUSTICE did not, of course, say that where an intention to kill has been established, an accused can escape conviction for murder by showing merely that in the circumstances a reasonable man would have lost his self-control. Clearly there would have to be some evidence '(leaving aside the question of onus) that the accused himself lost his self-control. As he said at p 237:

          "... to suggest that provocation is only a defence when it excludes the intention to kill is to narrow its limits unwarrantable ... it is not difficult to envisage circumstances in which it might properly be held that the had been provoked beyond endurance and to a point when any ordinary person would have been deprived of his self-control and acted fin the same mariner." '(Emphasis added).

The question what is meant by loss of self-control, and how that may diner from a lack of intention are separate matters. As LORD DIPLOCK indicated in Phillips v R (1969) 53 Cr App R 132 at p 135,  A  loss of self-control is not absolute but is a matter of degree: there are many intermediate stages between icy detachment and going berserk. And as SCHREINER JA said in Krull's case (supra) at pages 398-99:

          "That acts done after a man has lost control of himself may still in a sense be said to be Intended is no doubt true. But also it may fairly be and is, said that such acts are not really intended ... Whether one says that a provoked man loses the power of self-control or becomes unable to form the intention to kill seems to me to be substantially a question of the choice of words. Either form is probably only a roughly approximate description of the actual mental processes Legal systems can only attempt by one approach or another to give effect to Me basic Idea, which is that the  C  provoked person may have been so upset that the mental element requisite for murder may not have been present."

Tenganyika's case (supra) has been followed in this country, despite the criticism of it in Krull's case (supra). See for example R v Bureke, 1959 (2) R & N 353 (FSC); R v Majhaye, 1965 RLR 106. We are not bound by these decisions - see s 24 (2) of the Supreme Court Act, No. 28 of 1981 - but unless there is good reason for departing from them we would not want to give a new direction to the law at this stage: Practice Direction (Precedent), 1981 (4) SA 1981.

There are arguments both of principle and expediency in favour of each of the two approaches. The South African approach follows the logical and systematic application of the strict law that an intentional killing of another person is murder unless there is a legitimate excuse, such a justifiable homicide (R v Koning, 1953 (3) SA 220 (T) or self defence (R v Mathlau, 1958 (1) SA 350 (AD)). To act under provocation, it is said, is not to act with any justification. As SCHREINER JA put it in Krull's case (supra) at p 399C:

          "In self-defence the motive is fear, which from the law's viewpoint is a better motive than anger, which operates in provocation."

Provocation may be an extenuating circumstance and a mitigating factor, but once it is established that a person acted with intent to kill then he is guilty of murder. In my view there are two answers to this view.

“First, if the law recognizes that provocation is an extenuating circumstance then there is no question of principle involved in recognizing it as a circumstance which may reduce murder to culpable homicide. It is only a question of the effect to be given to it. Both self- defence and duress - see S v Goliath, 1972 (3) SA 1 (AD) - are now recognized as defences to murder. Either may be a complete defence or may operate to reduce murder to culpable homicide, depending on the facts. But in each case it is accepted that what is excused or reduced is an intentional killing. There is therefore no anomaly in recognizing that provocation may have a similar effect, or at least may reduce murder to culpable homicide even where the killing is intentional.”

The accused in the present matter was provoked by words uttered by the deceased that he was not the father of their child and that the deceased was not ill. This is what prompted him to assault the deceased with a stick. Thereafter he draws a blank as regards how he attacked the deceased with an axe. However, as previously noted, the accused recalls what he did after axing the deceased. In our view we do not accept that he suffered a black-out before he struck the deceased.

It is also clear that the accused was not in any danger when he struck the deceased with the axe. The nature of weapon used can only mean that the accused had some intent to murder the deceased notwithstanding the provocation. The nature of the attack on the deceased in light of the injuries sustained can only mean that the accused must have lost control of himself but not the intention to kill. However, in our view the accused did not mean to kill the deceased in the sense of desiring to bring about her death. This is because of the nature of the attack itself which was indiscriminate. It can only have been perpetrated by someone who was enraged. We do not accept that he had lost self-control as not to appreciate what he was doing. He must have realised that there was a real risk or possibility that his conduct might cause death, but continued to engage in that conduct despite the risk or possibility. He is accordingly found guilty of contravening s 47 (1) (b) of the code which is equivalent to murder with constructive intent.

Ratisai Law Practice, accused’s legal practitioners

Attorney-General’s Office, legal practitioners for the state