IN THE HIGH COURT OF ZIMBABWE
BEFORE: MUTEMA J
ASSISTED BY MRS A MOYO AND MRS E MASHENGELE, ASSESSORS
CRIMINAL TRIAL, HELD AT BULAWAYO 11 MARCH 2015
Mr T Hove, for the State
Mr T J Mabhikwa, for the Accused
MUTEMA J: Accused is facing the charge of murder. He pleaded not guilty to the charge. The State allegations are as per annexure A summary, while the defence outline of the accused is annexure B. It is important at this juncture to point out that in his defence outline while denying the charge of murder, the accused tendered a plea of guilty to culpable homicide, which the State did not accept. We will briefly allude to the relevant aspects of the witnesses’ evidence which are material for the resolution of this matter. The first State witness was Silibaziso Nxumalo. The pertinent aspects of her evidence are as follows:
The accused person came home on the day in question from where he rented a shop, he came in the evening following word that had been sent to him from the deceased’s relatives calling on him to come home. However, when he arrived at his homestead the deceased’s relatives had already left. The accused then sent for this witness. She went to his homestead and found him holding a bottle of spirit alcohol, she then told the accused that the deceased’s relatives wanted him to take the deceased to hospital for treatment instead of her simply remaining at home. This did not go down well with the accused person who said the deceased would not go anywhere because the homestead was her home. This witness said the deceased had been terminally ill for the past 5 years and she herself in her capacity as the accused’s sister in law being married to the accused’s elder brother had been taking care of this deceased for the past 3 months. The witness advised the accused to subscribe to what the deceased’s relatives had suggested. However, the accused was adamant that he would not accede to that suggestion, he then stood up and said that no-one should follow him or else that person would see. He then entered the house where the deceased was. She remained standing outside with the accused’s children, soon there after she heard the deceased screaming saying “mayibabo!”. She then ran away with the children to Aaron Moyo the second State Witness to seek assistance. On the way to Aaron Moyo’s homestead she again heard the deceased screaming. After advising Aaron Moyo of the event she and the children ran into the bush where they slept over night. The second and third State witnesses’ evidence is not of much help to the resolution of this matter, it being common cause that they were not present when the deceased died except that the second witness Aaron Moyo confirmed that the first State witness came running to advise him that the accused was quarrelling with the deceased. And there after he collected the third witness and they went to the accused’s homestead where they found the deceased having died. The fourth State witness was doctor Sanganai Pesanai, the one who examined the deceased’s remains and compiled exhibit two, the post mortem report. Pertinent aspects of his evidence are that he observed a groove on the middle part of the deceased’s neck and bleeding around the neck muscles, trachea and the larynx. The lungs were congested weighing more than normal their weight which is a symptom of having had breathing problems. The deceased’s tongue was blue, an indication of lack of oxygen supply to the body. Based on the foregoing observations the pathologist opined that the cause of death was asphyxia, strangulation and homicide. Homicide because it is impossible for one to commit suicide by tying a rope or a string around one’s neck and squeeze it until death. A groove on the middle of the neck showed that somebody had applied force with a rope on the deceased leading to asphyxia. He said it is not possible for somebody to cause such strangulation as observed on the deceased’s body using a blanket in an endeavour to cover the deceased to keep warm. The last State witness Sergeant policeman Machinda is the one who attended the scene following a telephone report by a member of the Neighbourhood Watch Committee. When he inspected the deceased’s body in the morning when it was light he observed some blood clot on the throat indicating that the deceased had been tied. He checked the items that were in that room and he found a piece of rope from a blanket measuring 60cm. This rope was taken to the station exhibit room but he does not know what became of it as he got transferred from Guyu to Gwanda traffic. After his evidence the State closed its case. The accused person gave evidence in his defence, he adhered to his defence outline which reads as follows:
The deceased was his wife of 21years. At the time of her death she had been terminally ill for 6 years. The illness had worsened in 2012 to the extent that she could not talk, rise, feed, bath or visit the toilet on her own. His relatives and himself took turns to look after the deceased. He also spent time at the family shop at Zendele area about 60 km away. He was called telephonically by the deceased’s relatives to come home. He went home and found his son, fourteen year old Professor minding the deceased. He asked for Silibaziso Nxumalo who had agreed to take care of the deceased in his absence. He was advised that she had gone back to her home and he sent for her. He was also advised that when she went back to her homestead she had uttered that she was tired of looking after a virtual corpse. He also learnt that the deceased’s relatives had gone back the same day. When Nxumalo came she confirmed that the Nkalas had gone back, and that she, was tired, she suggested that the accused should hire a vehicle to take the terminally ill wife to Zendele shop. They phoned the accused’s brother who disagreed with the wife’s suggestion, and ordered the wife to continue assisting. An argument then ensued and Nxumalo left with the children. When he entered the house he found the deceased sitted on the sofa with her head hanging on the side and the neck resting on the wooden part of the armrest of the sofa, she was shivering. He did not know for how long she had been seated on the sofa. In order to warm her he wrapped a blanket around her. He himself was stressed and drunk and believes that he may have used excessive force in the process of wrapping her with the blanket leading to the said asphyxia and death of the deceased.
He denied strangling her with a piece of rope as alleged. He regrets his wife’s death as he never intended killing her. He also expressed in his evidence what he had already stated in his defence outline that the deceased had been terminally ill for some 6 years, he confirmed the discourse between the first State witness and himself as stated by the witness, he however, denied telling the first State witness that no one should follow him into the house where the deceased was. He said he got the deceased to sit up on the sofa, wrapped a blanket around her, then sat on the sofa’s arm rest and made the deceased rest on his lap. A while later he felt the deceased’s tears dripping on to his lap, and when he looked at the deceased’s eyes he then observed that they could no longer open. He alleged that probably he used too much force to wrap the blanket around the deceased from the neck to her feet thereby occasioning her demise as he had taken Breakers Spirit on the day and was drunk, although he does not know how drunk he was. What caused him to drink alcohol was that he was thinking a lot about his wife’s illness and her relatives’ conduct which was akin to disowning her. He denied using the piece of rope referred to by the last State witness. He rubbished the deceased’s screams heard by the first State witness saying the deceased was wont to sometimes scream due to pain. Under cross examination the accused conceded that when he entered the house he told the first State witness that no one should follow him. He said he uttered so because they were refusing to assist him. He also conceded that he was not amused by the deceased’s relatives’ conduct and the first witness’ refusal to care for the deceased. We agonised to comprehend the accused’s explanation regarding the deceased’s death. We came to the conclusion that the accused’s explanation in this saga is puerile or childish. It is not only improbable but palpably false, it is sometimes said that things inconsistent with ordinary human experience are properly rated improbable. Even an infant cannot accept that the accused used excessive force on covering his wife with a blanket thereby strangling her to death, or that the plank on the sofa on which the deceased was resting caused the neck groove that was seen by the pathologist. Taking into account the following evidence we do not hesitate to accept it for it has a ring of truth throughout. The first is that the accused got angry over the discourse with the first State witness as alluded to above followed by his entering the room where the deceased was, threatening the first State witness and his children not to follow him in there or else. Immediately thereafter the deceased was heard screaming, never mind that he avered that she was wont to screaming due to pain. This was followed by the first State witness and the children running away to seek help and on their way they heard the deceased scream again. The first State witness and the accused’s children slept in the bush, a sign showing that the accused’s earlier threat was no idle threat. The pathologist observed a groove on the deceased’s throat, and a blood clot, and a blue tongue as well as congested lungs, signs of force having been applied to deceased’s throat by a rope, and signs of deprivation of oxygen to the deceased’s body and concluded that the cause of death was asphyxia, strangulation and homicide. The last State witness Machinda also observed blood clot on the deceased’s throat, a sign indicative of strangulation, and a 60 cm rope from a blanket. The foregoing evidence admits of no other conclusion other than that it was the accused person who strangled the deceased to death. As regards what intention the accused had in so doing it is beyond reasonable doubt that when one deliberately strangles such a terminally ill person to death the intention to kill must be actual. In the event, we have no difficulty in finding the accused guilty of murder with actual intent. That is the verdict of the court.
EXTENUATION BY DEFENCE COUNSEL
BY MR TJ MABHIKWA
Yes my Lord, perhaps let me start with extenuation. My Lord and Honourable Assessors I would persuade this Honourable court to find that there were extenuating circumstances in this matter. Basically with two reasons that:
- The accused had taken alcohol and was drunk. There are quite a number of cases dealing with alcohol as extenuation one of them being the State versus Kamusewu 1988 volume 1 Zimbabwe Law Report page 182 PG at 189 particularly the judge justice MacNally JA as he then was pointed out that the mindleness and wanton brutality of his actions support the conclusion that what the appellant did was done at a time when his normal inhibition had been clouded by his consumption of alcohol. That case in fact was quoted in State v Tshuma 1991 Zimbabwe Law Report at pg 166 that being a Supreme Court Judgment.
BY THE JUDGE :
Q. What volume? Sorry my Lord I think I must have omitted an outline lucky enough I have a, It should be volume 1 at pg 166.
That was Held Barry. Again it was held that alcohol may be an extenuating circumstance, intoxication, the court said it is not always easy to separate the extent of intoxication from the issue of intent but the level of intoxication does not always as a matter of cause affect one’s mensrea the consumption of alcohol is normally considered as a factor considered in extenuating circumstances. It was held then that the extenuating circumstances are existent in that matter and then there is also probably I would not need to quote more your worship but sorry my Lord but perhaps State –v- Makombe as well, State –v- Makombe My Lord 1991 again volume one I think the same report and the same volume as Tshuma Zimbabwe Law Report at pg 138, that case the Appellant killed his wife in a very brutal but motiveless attack. He had followed her at the river and then attacked her at the river throwing her into the river and then later on stabbing her three times, again it was indicated that drink, dagga and provocation and insanity are always possible possibilities especially in apparent motiveless killings and again that, er, judgment it was indicated that alcohol drunkenness may be considered in extenuating circumstances. The second point my Lord, and Honourable assessors, is the apparent state and condition that the accused was at the time generally, it is my humble submission and persuasion on behalf of the accused that he must have been very stressed as a result of the trauma of having to look after his partner for 6 years and watching that deteriorated condition since 2012. That must have been stressful enough, as he did explain that this was part of the, one of the reasons why he had taken to drinking that much coupled with the above my Lord, the above was the feeling of rejection when everybody seemed to be suggesting but abandoning him as on that day when he felt the relatives had left.
BY THE JUDGE:
Q. Why was he keeping her at home instead of treatment? A. My Lord his reasoning is that he had done so, but it had failed but perhaps I would still...
BY THE JUDGE:
Q. The post mortem report tells us that the deceased was HIV positive. A. Yes my Lord. And a history of being paralysed due to the illness. Was she on ARVs? A. Yes, she was and just like the accused is but I would also be quick to admit my Lord that perhaps the suggestion that she be taken to a certain place of care rather than her rural home would have made sense perhaps, it was the financial aspect that made it difficult. When I was asking the accused he did mention and allude to the fact that he had initially 6 cattle, 6 head of cattle that he had sold all of them in a bid to attend to both his illness and that of the deceased. He also indicated that only a few goats out of the original 90 or so had remained, also for the same reasons, and was trying to not only attend to the wife’s illness and his illness but also to the children’s school needs, or school requirements, together with the need to fend for the whole family. So that was very stressful and my Lord, this matter also, may I say, has been hanging over his head since August 2013 but for the point of extenuation only, the two points I believe my Lord will suffice, the stressful conditions that he was under and his consumption of alcohol. May I indicate also my Lord that I did note that in terms of the new Constitution section 48(2) refers to the death penalty having to be imposed only on an accused that has committed murder in aggravating circumstances but that has not yet been defined, what I believe it is still proper that we look into extenuation and whether there was any. My Lord perhaps may I seek the court’s indulgence whether I need to mention other mitigatory factors.
BY JUDGE: One thing at a time. Thank you my Lord.
EXTENUATION BY THE STATE COUNSEL
BY MR T. HOVE
Thank you my Lord and Honourable Assessors. Whilst in the case of Kawora, it was observed that the onus of the proof of the extenuating circumstances lies on the accused, but it was also pointed out that the State can and should assist the court in arriving at an informed decision on extenuation. In the case of Dube 1997 Volume 1 Zimbabwe Law report pg 229 it’s a High Court Decision , it was held that the combination of alcohol, drugs and stress has the effect of diminished responsibility on the accused. If this observation by the court is anything to go by I submit to my Lord and Honourable Assessors that the definition of extenuation is anything that reduces the moral blame worthiness of the accused. It came out during the course of the trial that accused was carrying a bottle of spirit, and therefore the aspect of alcohol comes in and the net effect of alcohol is diminished responsibility as alluded to in the case of Dube. In Fundakuvi 1948 volume 3 SA 810 an Appellate decision it was held that in determining the issue of extenuating circumstances, everything which influenced the mind or emotions of the murder must be taken into account and again my Lord, and Honourable Assessors the glaring factor is one of intoxication. Having said that my Lord and Honourable Assessors, the State submits that if the Court is persuaded by the decisions cited I will submit that intoxication can be taken as an extenuating circumstance. Finally my Lord and Honourable Assessors, in the case of Jawure 2001 volume (2) Zimbabwe Law Report at pg 393 it’s a High Court decision it was held that the question whether or not there are extenuating circumstances ultimately must be answered by the court or judge. So having pointed out all these cases my Lord and Honourable Assessors the final decision as to whether or not the extenuating circumstances exist lies with the court. Those are my submissions.
My Lord I am Indebted to my brother for the State.
RULING ON EXTENUATION
It is not disputable that, on the day the accused person was intoxicated having taken Breakers spirit, he told the court that he was drunk although he could not specify the extent of the drunkenness this was prior to his committing the offence. It is also not disputed that intoxication where applicable does amount to an extenuating circumstance and also that stress coupled with the other indicia of extenuation is also considered in the determination of the existence or otherwise of extenuating circumstances. Apart from the intoxication alluded to supra the court also finds that the accused person must have been under severe stress due to the deceased’s terminal illness which had troubled him for the past 6 years and also his own HIV status could further have worsened that trauma. The court in the event accordingly finds that there are extenuating circumstances in the instant case.
Indebted My Lord. Thank you my Lord.
Q. Yes Mr Hove. First offender? A. He is a first offender my Lord. Mr Mabhikwa on mitigation.
Very well my Lord, in mitigation of sentence My Lord and Honourable Assessors the accused will persuade the court to consider the following factors . That he is a first offender as has been already stated, at 48years of age. He of course has lost his wife now, he has 7 children to look after, 5 of the 7 are still of school going age.
BY THE JUDGE:
Q. How old is the youngest? The youngest is now 6, he was 4 at the time when he was arrested or at the time the mother passed away.
Q. So who is looking after them? A. My enquiry was that about 3 relatives have tried to look after them, although it is my submission that the accused would have loved to look after his children especially the four year old son that he had at the time he was caught he actually was looking after the child, I must however mention my Lord that my enquiry also indicates that lucky enough this child was checked several times I’m told but was found to be free of HIV.
Q. They then also checked as to who infected the other with HIV? A. I did but it was difficult to establish and the accused does not seem to be sure.
Q. Okay carry on. In survival my Lord he had tried to rent a small general dealer’s shop to supplement instead of keeping on selling stock. When the wife became terminally ill he then remained the sole bread winner. As I have already alluded to a bit earlier they did sell almost all the stock that is 6 cattle but a few goats remained, he believes perhaps they may be more now and five donkeys. The accused himself is also terminally ill as it were, is ill suffering from the same HIV and Aids illness. He has to be medically attended periodically I have showed my brother the cards that have been sent from Khami I did phone Khami Prison, and the officer in charge sent somebody to bring the cards for the accused. It shows his medical history. My Lord, perhaps for the court sight may I produce, however, I think from it appears just yesterday he was attended to at the hospital. I don’t know that white document apparently may have been mistakenly sent my Lord it has somebody else’s name. It is Nelson’s. When I asked him my Lord, I did notice that going through that book is difficult but I did ask him and he said perhaps it boils down to what he said that what occasionally troubles him is a severe head ache and swelling feet those are the things that usually trouble him much. A severe head ache and the swelling of the feet. I did allude to the fact that for the 19 months after the death of his wife this matter has been hanging over his head considering his own ill health and that he is incarcerated. Ultimately my Lord, he has asked me to persuade this court to consider that he has been in continuous custody for 19 months since his arrest in August 2013. My Lord and Honourable Assessors until unless the court would want me to clarify a particular point, those are the useful factors in mitigation of sentence. Thank my Lord.
Thank you my Lord and Honourable Assessors. In aggravation the State would like to point out that life was unnecessarily lost, and it is the duty of this court to protect the sanctity of life. It also boggles the mind my Lord and Honourable Assessors why accused decided to vent his anger on the deceased, yet what had angered him was the decision made by the in-laws and not the deceased. Accused killed deceased in a callous manner in that he strangled her. Deceased met her death in a painful manner as evidenced by her screams. On the aspects of the appropriate sentence my Lord and Honourable Assessors. I am guided by the case of S v Mshandira cyclostyled judgment HH320/14 in that case My Lord and Honourable Assessors, the verdict of the court was made of the actual intent and there was a finding of extenuation or extenuating circumstances but the sentence passed was 30 years imprisonment, the court having taken into account that the circumstances of the case called for that kind of a long period of confinement.
BY THE JUDGE:
Q. What were these circumstances? A. Pardon my Lord.
Q. What were the circumstances leading to the death? A. It was er the accused er killed his wife, it was the extenuation circumstances was found with crimes of passion.
Q. Why did he kill her? A. I don’t really …..” but their
Q. How did he kill her? By strangulation? A. Not strangulation my Lord although the full facts have skipped me but the emphasis is on the fact that the circumstances were equally vague like these ones and that’s when despite the finding of extenuation but a long term of imprisonment was called for.
Q. But Mr Hove without comparing and contrasting the circumstances surrounding the murder we cannot, in the absence of those facts we do not know whether he stabbed her whether he strangled her or shot her with a fire arm etc. A. I stand guided so my Lord.
Q. You said she met her death in a painful way via strangulation? A. Yes.
Q. Strangulation must be painful so we want to compare and contrast with a case of strangulation.
Q. Do you have anything further? A. I don’t have any further details my Lord I will end my submissions.
I have one reply on a point of law my Lord. My brother has said the accused killed the deceased in a callous manner may I refer perhaps to State V Mutshimikwa at 1985 volume 2 Zimbabwe Law Report at page 238 it’s an appellate decision. Where the court pointed out that murder is always a wicked deed and whenever it has to be considered as in that case youthfulness was the extenuating circumstance, the court went on to say but also the motive with which the crime was committed, the personality of the accused and other relevant factors come to light in order to determine whether the offence was committed from the person’s inherent wickedness infact throughout the cases dealing with extenuating circumstances, It has often been said that it is inherent wickedness of the accused or of the murderer.
Q. That’s the manner in which it is perpetrated to differentiate cases from one case to another as regards the callousness.
A. Very well my Lord I agree, I have nothing further.
Q. In casu you don’t start to wonder or think that most probably he killed his terminally ill wife in order to get rid of this burden with which he was saddled with.
A. It is possible in fact I would agree more with that suggestion rather than that it was to avenge the anger of the deceased’s relatives suggestion. That my Lord, point may probably be more arbitrarily than earlier suggested by the State. It is really difficult but that is a possibility.
Q. Thank you Mr Mabhikwa? A. Thank you my Lord.
Q. Stand up Accused.
Herewith is your sentence. In determining your condign sentence the following factors shall be taken into consideration. Based on what was said in your favour by your counsel, you are a 48 year old first offender with 7 children of whom five are still minors and school going the youngest being aged 6 years old and currently they are being looked after by various relatives of yours. That you did play your part in endeavouring to raise financial resources to alleviate your deceased wife’s suffering as well as your own. And also that your pre-incarceration period is some 19 months the court shall not place much emphasis on the aspect that you have lost a wife because you are the one who killed her. The other two factors found as extenuating circumstances are also relevant in mitigation namely intoxication and stress. It is quite unfortunate that your minor children shall remain parentless for a long period of time. This is unavoidable, you can only have yourself to blame because you are the one who caused it. The court must not loose sight of the fact that you unnecessarily caused the loss of a human life whose sanctity must always be protected by the courts. Since time immemorial societies have always abhorred the crime of murder. We are saddened and boggled if not flabbergasted by your decision to prematurely end the deceased’s life. As correctly conceded to by Mr Mabhikwa, it is most probable that the motive behind your killing of your wife who was terminally ill, was to off load from your shoulders the burden of looking after her. But the court must remind you that when a man and a wife decide to get married to each other it is for life, for better and for worse. Despite the stressful difficulties you were encountering looking after a terminally ill wife, this was the time when you should have exhibited your most deep love for her. Even mercy killing in Zimbabwe still remains murder. The court stands to agree with the submission by State Counsel that you killed the deceased in a most callous manner in that the deceased met her death in a painful manner, obviously strangulation is killing someone slowly, slowly. You can imagine the victim loosing breath and struggling for breath. This must have been a painful kind of death. The court also notes with a lot of disquiet that murders being perpetrated in domestic set ups is on the increase, spouses killing each other, we really do not know what our society is coming to. Courts have always imposed what they deem stiff and deterrent sentences. But it appears that the desired effect is not being achieved. However, the courts should not shirk from their sworn obligation of imposing what they deem condign and deterrent sentences. While the court does feel for your children it also has to look at the interests of justice, as well as look at societal expectations. The court does not think the children are going to forgive you when they already know that you did kill their mother. Having weighed mitigatory and aggravatory factors in this case you are sentenced to 25 years imprisonment.
Certified True and Correct Transcript