1

HH 508-15

CRB No. 177/10

Ref Case No. CRB GV 599/09

 

THE STATE

versus

VENGAYI CHIZENGEYA

 

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 12, 13, 14 November 2012, 4, 15, 20, 22 February 2013 & 5 June 2015

 

Assessors: 1. Mr Chogugudza

                  2.  Mr Tutani

 

Criminal Trial

 

B. Murevanhema, for the state

O. Shava, for accused

 

MUSAKWA J: The accused is charged with murder. It is alleged that he caused the death of Morgan Chiringanyama on 13 June 2009 by striking him with an axe handle with the intention to kill or realising that there was a real risk or possibility that his conduct might cause death and despite such risk or possibility continued to engage in such conduct. Since the enactment of the Criminal Law (Codification and Reform) Act [Chapter 9:23] most prosecutors have not framed an indictment of murder with precision.

The incident took place at Nyambizi Village, Chief Kasekete, Muzarabani. The summary of state case alleges that on 13 June 2009 the deceased and Edington Munyimi heard cries for help emanating from the residence of the accused’s mother. They proceeded there. The accused confronted the deceased and Edington whilst armed with a log. He assaulted Edington with the log and kicked the deceased. The deceased fled and the accused pursued him whilst armed with an axe handle. The deceased was assaulted on the head and sustained serious injuries which led to his death. The cause of death was established as severe head injury and multiple soft tissue injuries.

In denying the charge the accused outlined that on the fateful day the deceased passed through his home in the company of Stephen Chizema intending to purchase beer on credit. He declined to serve them as they owed him money from previous transactions.

Later, whilst in the company of two Cottco guards he saw the deceased on the road. This was between 6 p.m. and 7 p.m. The deceased indicated that he was not well. The guards asked the accused to look for a wheelbarrow with which to carry the deceased. When he returned to the scene the deceased was vomiting blood. He then left the deceased with the guards and does not know what transpired.

The evidence led by the state reveals that the accused went on a rampage. The state witnesses did not give a similar version of the events as they unfolded.

Edington Munyimi, a neighbour of the accused and the deceased’s brother in law testified that around 7 p.m. they heard noise at the accused’s residence. The deceased proceeded to the residence whilst he remained by the road. The deceased was tripped by the accused and he fell down. The accused proceeded to where the witness stood. The accused held a log which he aimed at the witness. The witness blocked with his hand which got fractured below the elbow. He was further assaulted on the right side of the chest and broke two ribs. He then fell down.

The accused chased after the deceased whom he threatened with death. He did not know how the deceased eventually died. The witness found his way home. Around 10 p.m. the deceased was taken to his residence in a cart by his young brother Chamunorwa and a nephew. He observed injuries on the deceased’s neck and back.

During cross-examination it was put to the witness that his testimony contradicted his statement to Police. In that statement he stated that he and the deceased passed through the accused’s home. He explained that they passed by the home.

Elizabeth Kaweto the accused’s wife testified that on the day in question she had a misunderstanding with the accused. This was in connection with shoes she had purchased. The accused had given the shoes to his sister without consulting the witness. When she queried this the accused became aggressive and assaulted her.

The accused used a thorny stick. This happened when they were about to reach the accused’s mother’s residence. Her mother in law had suggested that she take refuge at her residence. She briefed her mother in-law who suggested that she take refuge in her bedroom. Previously Edington Munyimi had been to their residence where he restrained the accused when he was assaulting her. She had also seen the deceased. She did not see Edington at her mother in-law’s residence. Edington is a nephew.

During cross-examination she disputed that her misunderstanding with the accused was over her infidelity. However, she conceded that they had previously quarrelled over the issue. She explained that around 7 p.m. she sneaked out of her mother in-law’s bedroom. She had seen the accused with a weapon and decided to escape. When she escaped the accused was arguing with his mother.

On the other hand Roseline Shamu the accused’s mother testified that Elizabeth was having an affair with another man. On the day in question the dispute between the accused and Elizabeth had started around 10 a.m. on her way from the fields the witness saw the accused and Elizabeth quarrelling. She told Elizabeth to seek refuge elsewhere. She then went away with Elizabeth who briefed her on the cause of the squabbling.

Concerning the shoes she stated that the accused bought shoes for his sister. Then Elizabeth declined to hand them over. The witness thought the dispute was over. Later around dusk she saw Elizabeth running towards her home. There was only the deceased at the accused’s home. She had left the accused and the deceased drinking beer.

When Elizabeth arrived she told her to get into her bedroom. At some stage she was assaulted by the accused and passed out. She did not see the accused for the rest of the night. The following day the deceased’s body was brought to her home. The accused later came holding an axe handle. Later he went away in search of Elizabeth.

This witness was not cross-examined. When the court sought clarification she stated that the accused assaulted her for hiding his wife. She also stated that the accused person did not threaten the Police Officers who came to her residence.

The accused’s sister Catherine Chizengeya also testified. She stated that the accused bought shoes for her younger sister to which the wife objected. They decided to return and whilst on the way the wife refused to proceed. The witness was in the field and she saw the two after the dispute commenced.

The accused took a switch and assaulted the wife. Their mother called out to the wife to take refuge at her home. The wife did so and later sneaked away after feigning getting into the bedroom. After the wife left the accused took a log from the rack. He then left in search of the wife. This was after he had searched the wife’s bedroom.

The accused assaulted the mother with the log. When she tried to restrain him she was also assaulted. One Peter Mapiki came to restrain the accused and that is how she escaped. She went and made a report to the Police. She had not seen the deceased and Edington Munyimi. She returned home at night in the company of Police Officers. The accused was not present. Later the accused returned when the witness was calling out to their mother. The accused remonstrated with her for bringing Police Officers. He had a small axe. The accused left in the company of the officers after he had discarded the axe handle.

Catherine was not cross-examined.

Members of the Police Constabulary, Emmanuel Mataga and Simon Maradza testified. Having received a report from Catherine they went to the scene of mayhem. Initially they did not see Roseline. She later came and reported assault.

Later the accused arrived holding a stick. The accused was belligerent and they could not arrest him. He also smelt of alcohol. They persuaded the accused to accompany them. The idea was to lull him and get help to arrest him.

On the way they heard cries. The accused then led them to where they found the deceased. The deceased stated that he had been assaulted with a hoe handle by the accused. He had no shirt. The accused then handed to them a yellow T-Shirt which was in his pocket. The accused’s response was that the deceased had hit against a tree when he was fleeing.

When it was pointed out to the accused that he had injured the deceased he volunteered to secure a cart. He did not return. The deceased had a wound at the back of the shoulder and it was bleeding. He was also bleeding from the nose, ears and mouth. They then took the deceased to hospital.

During cross-examination the contents of Emmanuel Mataga’s statement were put to him. In his statement he had stated that as they made their way they heard someone calling out. They then went their and established that it was the deceased. He explained that it was the accused who showed them where the deceased was.

Peter Mapiki is a cousin of the accused. When he visited the accused’s home he heard about the dispute pertaining to the shoes from Elizabeth. The accused went away with an ox drawn cart whilst Elizabeth went to the field where the accused’s mother was. Elizabeth returned around 5 p.m. an argument erupted between the accused and Elizabeth. The accused took the shoes that were at the centre of the row and told Elizabeth to leave. Elizabeth left for accused’s mother’s residence. After a short while there was commotion. He heard the accused’s mother’s screams. When he attended he saw the mother lying down and bleeding from the head. The accused and Elizabeth were not present.

The witness also left and saw the accused’s child by the road. He did not see the deceased or Edington Munyimi. Around 10 p.m. Police Officers called looking for the accused. Together they went to the accused’s mother’s home. There they saw the sister and later the mother. Later the accused arrived. He held what looked like a stick. The accused demanded to know who had called the Officers. When the officers were leaving the accused stated that there was a person whom he had assaulted. Thereafter the accused and the officers left.

Shortly the accused returned and stated that he was leaving. The reason he gave was that the deceased had been seriously injured. This prompted the witness to follow up.

Although it was dark he saw that the deceased was vomiting blood. They secured a cart from the headman and took the deceased to Machaya Clinic. Concerning allegations of an affair with Elizabeth he stated that the issues arose after the accused’s arrest.

During cross-examination he stated that the deceased and Edington Munyimi passed through the accused’s home but did not stay for long. When the accused quarrelled with the wife they were no longer there. When it was put to him that the wife stated that she left the two at their home he replied that he could not recall.

The witness disputed some contents of his statement. For example, in the statement it is said he was in the company of the officers when they came across the deceased. His evidence was that he remained behind and later followed alone. He claimed to be illiterate.

Julia Musariri, a general medical practitioner based at St Albert’s Hospital conducted an autopsy on the deceased’s remains. She testified that a swollen head and bleeding through the ears indicates severe head injury. There were linear soft tissue injuries on the lower part of the body. These could have been caused by a blunt instrument. There were also bruises on the right shoulder and the left eye was badly swollen. Other injuries were bruises on the back, testicles and legs. Cerebrospinal fluid was coming out of the ears, which is also a sign of severe head injury. The case was not complex, hence the absence of an internal examination. She also explained that they do not have facilities to conduct internal post-mortem examinations.

Augustine Borerwe a magistrate stationed at Guruve is the one who confirmed the accused person’s warned and cautioned statement. He explained the procedure which is preceded by clearing the court room. He also referred to the record of confirmation that he completed during the exercise.

Despite objections to the production of the confirmed statement the court ruled that it was admissible. This is because the challenge to its production was weak.

In his testimony the accused cited two encounters with the deceased. The first was when the deceased came to purchase beer on credit whilst in the company of Morgan Chrimanyemba. He turned him down.

The deceased returned around 7 p.m. This was when the accused was having differences with his wife. Whilst the deceased walked about his mother’s yard he threw stones at the accused. When the accused picked up a hoe handle the deceased fled.

When the deceased returned the accused slapped and kicked him. The deceased then left. The accused went to brief his uncle about the tiff with his wife. He was told to go back home. The deceased returned for the third time. The accused chased the deceased whilst holding his child. The deceased hit against a Musawu tree and fell down. When he woke up he asked for water.

The accused went away and met Peter Mapiki whom he handed the child. On his way back to where he had left the deceased he met Shepherd Magore who had a plastic container. They then gave the deceased some water and poured some on him. The deceased had moved from his initial position.

Concerning the warned and cautioned statement the accused stated that it was recorded after he had been harassed and assaulted. He took issue with the part which states that he used an axe handle.

 He further stated that the deceased had called for help. When they went to where he was he explained that he had collided against a tree whilst running from the accused. The accused then left to look for a wheel barrow. When he returned he explained that he was going away as he did not know the whereabouts of his wife.

He confirmed accompanying the two Police Constabulary members as he said they had requested him to see them off as they discussed the commotion that had taken place at his home. He confirmed that he held an axe handle. He claimed to have been drunk but could appreciate some things.

It was put to him during cross-examination that he gave three different versions of what took place. To this he replied that he slapped and kicked the deceased. He further stated that he overlooked to tell counsel that the deceased sustained injuries from colliding with a tree.

Concerning assaulting the deceased and Edington Munyimi he conceded that they had come to quell the commotion. When they pelted him with stones he used a hoe handle to hit Edington Munyimi. As to why it was not put to the state witnesses that they pelted him with stones he replied that he did not consider it an issue. He conceded that his defence outline does not explain what transpired. He also conceded that the deceased could not have sustained injuries without his involvement. In reply to a suggestion that he was lying he stated that what he told Police was true. Regarding the deceased’s head injury he stated that after he fell down when he hit against a tree and since the accused had an axe handle he must have struck him on the buttocks and legs. Then he further stated that since it was dark he did not observe where the blows landed.

The accused also conceded that there had been no enmity between him, the deceased and Edington Munyimi. Regarding his disappearance to Hoya he claimed to have been following up on their child whom the wife had abandoned. He also conceded that the row between him and his wife had nothing to do with adultery between her and Peter Mapiki.

Under re-examination he stated that he did not dispute the allegations. He just wanted to explain what happened. He further stated that although he ‘killed’ the deceased he did not realise that his conduct would lead to death. He also answered that the deceased died because he assaulted him. He struck him twice with a hoe handle. He did so to punish him.

Finally the accused was asked by the court as to what happened to the deceased when he struck him with the hoe handle. He replied that he left him seated.

The confirmed warned and cautioned stament recorded from the accused person reads as follows-

“I admit the charge of murdering Morgan Chiringanyama when we were fighting. Both of us were intoxicated with beer. Morgan Chiringanyama had intervened in the dispute between me and my wife Elizabeth Kaveto. He is the one who started striking me with stones. I then struck him once with an open hand on the face and kicked him once on the back. I later struck him twice with an axe handle but I did not see where I was striking him because it was dark. He ran away after that.”

The post-mortem report noted that the deceased died of severe head injury and multiple soft tissue injuries arising from assault. Doctor Musariri elaborated on her findings when she testified.  

The state sought a verdict of murder in terms of s 47 (1) (b) of the Code which Mr Murevanhema termed in its anachronistic term, constructive intent. I term the use of constructive intent anachronistic by virtue of s 15 (4) of the Code which states that-

“For the avoidance of doubt it is declared that the test for realisation of a real risk or possibility supersedes the common-law test for constructive or legal intention and its components of foresight of a possibility and recklessness wherever that test was formerly applicable.”

 

In light of the above it is imperative that legal practitioners and prosecutors be alive to the concepts that were introduced by the Code and use them where appropriate. Nonetheless Mr Murevanhema submitted that the accused did not dispute that the place where the deceased was found was where he inflicted the fatal blow. As regards the test for realisation of real risk or possibility he referred to S v Mvurume 2002 (2) ZLR 624

Regarding the injuries sustained by the deceased, Mr Murevanhema submitted that it is evident that there was no intervening cause. The medical evidence adduced is conclusive that the injuries were sustained from assault. In support of this submission he referred to Levy v Tune-O. Mizer Centre (Pvt) Ltd 1993 (2) ZLR 378.

Mr Murevanhema submitted that the accused could not have been provoked to such an extent that he lacked the requisite intention. He referred to S v Nangani 1982 (1) ZLR 150 and S v Dube 1997 (1) ZLR 229. He also pointed out that the initial defence was based on provocation attributed to an alleged affair between the accused’s wife and Peter Mapiki. But, as pointed out by Mr Murevanhema, if that was the case how could the accused have handed his child to the same Peter Mapiki. He also urged the court to draw adverse inferences from the inconsistencies in the accused’s defence. Reference was made to S v Mandwe 1993 (2) ZLR 233.

Whilst conceding that the accused gave three different versions Mr Shava submitted that it is not for the court to compare the evidence for the state with that given by the accused. This is because the state bears the onus to prove its case beyond a reasonable doubt.

Regarding the confession, citing s 273 of the Criminal Mr Shava submitted that in the absence of other competent evidence, it may be disregarded. Thus, in the absence of the confession, he submitted that there is no credible evidence to prove the guilt of the accused person. There is no direct evidence that the accused killed the deceased. It is only the medical evidence that concluded that the deceased died of severe head injury. Even on this aspect Mr Shava was critical of the medical evidence on the basis that there was no internal examination.

Mr Shava further submitted that the test for intention is subjective. In that regard he submitted that intention may be inferred from the circumstances of a case. In support thereof he cited S v Gumbi 1994 (2) ZLR 323 (SC) and R v Kadongoro 1980 ZLR 54. Thus he submitted that the accused was only negligent and may be found guilty of culpable homicide if the court is so inclined.

It is pertinent to note that most of the evidence led by the state is not relevant to prove the essential elements of the charge. It only serves to highlight that the accused at some stage wantonly assaulted members of his family. That is the background to the charge. Nonetheless, it does not appear that there was a break between that conduct and the confrontation with the deceased.

There is no doubt that the accused was confronted by the deceased as a result of the commotion that was taking place at his mother’s home. What is not clear is the sequence of events as the state witnesses gave different versions on this aspect.

Nonetheless it is not in dispute that the accused assaulted Edington Munyimi as he tried to restrain him. The accused did not dispute that save that he claimed Edington Munyimi and the deceased were pelting him with stones. I ist also accepted that no one witnessed the assault on the deceased. However, Edington Munyimi witnessed the accused pursuing the deceased.

It cannot be mere coincidence that the accused pursued the deceased who was subsequently found with serious injuries. The accused later returned home and told Peter Mapiki that he was leaving because the deceased was seriously injured. It must be noted that when the accused had left home together with members of the Constabulary Emmanuel Mataga and Simon Maradza it is the accused who led them to where the deceased lay. This was after they heard groans from the deceased. Whilst the deceased claimed that he had been assaulted by the accused, the accused reacted by telling them that the deceased had collided against a tree.

The confirmed statement constitutes evidence against the accused person. It constitutes a confession. I did point out that the challenge to the admissibility of the confirmed statement was weak. The magistrate who confirmed the statement testified and it was apparent that there was no irregularity in the confirmation. In this respect see S v Woods And Another 1993 (2) ZLR 258 (SC) in which at 268 GUBBAY CJ had this to say-

“In S v Woods & Ors S-60-93 (not reported) I ventured to suggest that:

            “If ... at the stage the prosecutor seeks to tender a confirmed extra-curial statement to the      court, the defence is able to raise a potentially sustainable challenge to the propriety of the       confirmation proceedings, even though there is nothing ex facie the record to support it, I           consider that the court is obliged to determine the validity of that challenge as a separate preliminary issue of fact.”

 

            I went on to say:

            “If the challenge is rejected by the court, and the onus is on the State to prove the     absence of any irregularity, then s 242(1a) is satisfied and the statement is provisionally        admissible with the onus upon the accused to rebut the presumption. No separate trial on the      issue of admissibility is required. See S v Gwaze & Anor 1978 RLR 13 (A) at 17H. If, on the        other hand, the challenge is upheld, then the onus remains on the State to prove beyond a           reasonable doubt that the accused made the statement and, if he did, that it was made    freely and voluntarily and without undue influence. See S v Gwaze & Anor (supra) at          18D-E.”

 

 The confession is confirmed by the testimony of Edington Munyimi. Therefore Edington Munyimi could not have lied when he stated that the accused chased after the deceased. Apart from the warned and cautioned statement, during the trial the accused person ultimately admitted to assaulting the deceased and leaving him seated. That puts paid to the claim that the deceased sustained the fatal injuries from colliding against a tree.

As for the verdict, it cannot be said that the accused set out to kill the deceased. We accept the submissions made by the state. The injuries inflicted on the deceased were severe. This was exacerbated by the use of a weapon. Realisation of real risk or possibility in the present case entails an awareness that the conduct that the accused was engaged in might result in harm, and recklessness: in that despite that awareness the accused continued to engage in the harmful conduct. This is evidenced by the accused’s pursuit of the deceased whilst armed with a weapon and this culminated in the infliction of the injuries that resulted in the deceased’s death.

Accordingly, the accused is found guilty of contravening s 47 (1) (b) of the Code.

 

National Prosecuting Authority, legal practitioners for the state

Mbidzo, Muchadehama & Makoni, accused’s legal practitioners