Judgment No. HB 17/15
Case No. CRB (HC) 193/14
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 29 AND 30 JANUARY 2015
Mr T. Makoni for the applicant
Mr B. Masamvu for the respondent
MOYO J: The accused person faces a charge of murder, it being alleged that on the night of 1 February 2014 and the morning of 2 February 2014, the accused person allegedly assaulted the now deceased, namely Nobuhle Moyo who was his customary law wife. The deceased died at Mpilo Hospital on the morning of 2 February 2014.
The state led viva voce evidence from Musa Zulu. The evidence of the other witness was admitted into the court record in terms of Section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These were Nhlalo Gumbo, Caroline Sibanda, Belina Msimanga, Decock Masuku, Arnold Nyamayarwo and Doctor I. Jekenya. The documents exhibits were the state summary marked Exhibit 1, the Defence outline marked Exhibit 2, the confirmed warned and cautioned statement marked Exhibit 3 and the post mortem marked 4. The accused person gave evidence for the defence. The facts of the matter are largely common cause. The accused person and his wife (the now deceased) were returning from a beer drink at Pumula Beer garden at around 2100 hours when they had a misunderstanding. Accused started hitting the deceased accusing her of having a relationship with a certain man. Nhlalo Gumbo and Luke Mpande who were also travelling the same way, then restrained the accused person. Accused dragged his wife deceased and Nhlalo Gumbo was then hit by accused with a stick when he tried to restrain deceased. He then retaliated hitting accused with a fist on the face and accused fell down. Nhlalo Gumbo then proceeded to his room with the deceased, where they slept together and had sexual intercourse, once. The accused person later woke up where he had fallen and went to report the assault at Pumula Police Station. He later went to look for deceased carrying an axe and a knobkerrie and found her sleeping in Nhlalo Gumbo’s bedroom. He was incensed by this, and accused struck Nhlalo Gumbo with an axe on the shoulder and the witness fled into the bush. Nhlalo Gumbo heard deceased screaming saying accused was killing her.
Musa Zulu heard screams woke up to check and found accused holding a knobkerrie and an axe dragging deceased, deceased broke loose and ran towards a lit room but fell on the step. Accused followed deceased and was about to struck her with an axe but the witness intervened and said he would rather hit her with the axe. She asked the accused person to hand over the axe and the knobkerrie to her which he did.
The witness then left accused hitting deceased with booted feet and dragging her out of the yard. She went to call the neighbourhood watch members. She took about 2 hours as the trip was long because these members did not stay at the same place so she had to go to one place after another. When she came back with the members of the neighbourhood watch, accused was still beating the deceased but now they were outside the yard. She did tell this from screams and the sound of an assault.
They then restrained accused from beating the deceased and carried her in a wheelbarrow to R. Sinyoka School where they would meet an ambulance. She saw from the ambulance lights bear on the deceased that she was injured on the head and the cheek.
The accused person in his defence outline, states that he used clenched fists and booted fit but in his confirmed warned and cautioned statement he says that he used open hands, a dry tree branch and a fresh switch. The post mortem report gives a series of injuries numbered 1 – 8. The post mortem report further states that the pale body means she lost a lot of blood from the multiple wounds of the head (scalp and face) from the axing. The report further says the right thigh bruise and the right parietal and bilateral occupied wound could have been caused by the handle of the axe or any rod like object.
This court has to make a determination on what was used to assault the deceased as it is the only issue upon which a finding should be made as there are varying facts on it. Firstly, Nhlalo Gumbo whose evidence was admitted as contained in the state summary says accused brought the axe and the knobkerrie, meaning the accused’s version that he only brought the knobkerrie and took axe from the witness is not true. The accused person brought the said weapons with him.
Secondly, it is significant that Nhlalo Gumbo also says when the accused arrived, he struck this witness with an axe on the shoulder, the witness fled and later heard deceased screaming saying the accused was killing her.
Musa Zulu also says she found accused carrying the knobkerrie and the axe and that when accused was about to strike deceased with the axe the witness intervened and stated that he would rather hit her. She then took the weapons away from the accused. The accused admits that he was very angry on the date in question because of the unbecoming conduct of Nhlalo Gumbo and the now deceased.
The post mortem report gives a series of injuries and amongst these injuries which are mainly wounds, the Doctor also chronicles about four fractures. On the second mark of violence, there is an underlying hair line occipital fracture, on the 6 mark of violence there is a fracture of the left maxillary bone.
On the 7th mark of violence there are fractures of the nasal bridge and nasal bridge fractures. On the 8th mark of violence, there is a fracture of the upper jaw.
The Doctor remarks that the multiple scalp and face wounds are from axing. In other words the words are consistent with marks of an axe consistent with any rod like object.
Now this court’s finding is that the axe was used on the deceased on this the court finds for the following reasons. Nhlalo Gumbo saw accused wielding an axe and he in fact struck Nhlalo Gumbo with it on the shoulder. Musa Zulu saw accused about to strike the deceased with the axe and restrained him. The post mortem report has found that the wounds on the scalp and the face are from the axing meaning that from the Doctor view such wounds are consistent with the use of an axe. The Doctor also finds that a rod like object was also used in causing the other wounds. We accordingly find that the accused did use the axe on the deceased and in so doing he acted wrongfully and unlawfully. We then move on to determine what the accused person is guilty of.
The accused persons incensed by his wife’s conduct beat her for a period in excess of 2 hours, using firstly an axe, the booted feet, clenched fists, a dry tree branch and a fresh switch. We say in excess of 2 hours because, Musa Zulu was away for about 2 hours while accused beat the deceased until when she came back with the members of the neighbourhood watch and the accused had actually started beating the deceased prior to Musa Zulu’s intervention as she was awoken by the deceased’s screams meaning that the beating started then. It was also Musa Zulu’s evidence that at the time they came back and intervened, the members of the neighbourhood watch tried to lift the deceased and noted that she could no longer stand up. This shows the extent of the beating, she had been injured to the extent that she could no longer stand up.
We then look at the aspect of intention in murder cases. In this regard we refer to Professor G Feltoe’s Guide to the Criminal in Law Zimbabwe 2005 edition at page 96 wherein he stated as follows in relation to actual intention:
“The accused person desires death, death is his aim and object.”
He further says “there will also be actual intention where death is not the aim and object, but accused continues to engage in an activity which he realises will almost certainly result in death.”
The accused person assaulted deceased with an axe, booted feet, clenched fists, a log and a fresh switch. It is also important to note that accused wore safety shoes on the day in question. The continued assault of the nature the accused perpetrated on the deceased, for a period extending beyond 2 hours, and the nature of the injuries chronicled in the post mortem report, injuries some of which were as long as 20 cm and 1- 15 cm wide, as well as 4 fractures can only lead us to the conclusion that, the accused person continued to engage in an activity which he realised would almost certainly result in death. A person with the multiple wounds of the sizes give in the post mortem report, and the number of fractures stated therein would almost certainly die from then.
It was the state’s submission that the accused person had legal intention in his actions and therefore should be found guilty of murder with actual intent. This court does not accept these submissions for the aforestated reasons. Neither does this court accept defence counsel’s submissions that the accused has negligence in his actions. The accused by conduct had the requisite intention as defined in the law texts and other various authors.
We accordingly find that in fact the accused person’s conduct meets the second leg of the too prolonged test regarding what actual intention is. We accordingly find the accused person guilty of murder with actual intent.
National Prosecuting Authority, applicant’s legal practitioners