Court name
Supreme Court of Zimbabwe
Case number
SC 87 of 2006
Civil Appeal 120 of 2006
Case name
S v Mamukwa (Civil Appeal No.120/06)
Law report citations
Media neutral citation
[2007] ZWSC 87

DISTRIBUTABLE ZLR
(73)















Judgment No. 87/06



Civil Appeal No.120/06








SHONHAYI
MAMUKWA v THE STATE








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GWAUNZA JA


HARARE,
NOVEMBER 6, 2006 & SEPTEMBER 7, 2007









M S Gwaunza, for the appellant



R K Tokwe, for the respondent









SANDURA JA: The appellant (“Mamukwa”) was charged with murder,
the allegation being that on 22 October 1999 and at Tafira
Village in
Zvimba District, he unlawfully and intentionally killed Munashe
Chagweda (“the deceased”). He pleaded not guilty,
but was found
guilty and sentenced to death, no extenuating circumstances having
been found. He appealed against the conviction
and sentence.







The evidence led at the trial established the following facts. At
the time of his death the deceased was two years and five months
old.
About six months before the deceased’s death, Mamukwa married the
deceased’s mother (“Sekai”). The deceased was Sekai’s
son
with another man.







On the morning of 22 October 1999, Sekai left the matrimonial
residence in order to go to another village in the area. Before
leaving, she indicated to Mamukwa that she intended taking the
deceased with her. She intended taking him with her because on three
previous occasions when she left the deceased with Mamukwa, the
deceased sustained injuries which Sekai suspected had been inflicted
by Mamukwa.







However, Mamukwa advised Sekai to leave the deceased at the
residence so that the deceased could play with the other children
there.
Sekai took that advice and left the deceased in Mamukwa’s
custody. The deceased was in good health.







When Sekai left the residence, Mamukwa was thatching a hut on the
premises. He had not consumed any alcohol and was sober.







Whilst Sekai was away, and the deceased was in Mamukwa’s custody,
the deceased sustained serious injuries. Mamukwa, who was
sober,
informed his sister, Plaxedes, that the deceased had sustained the
injuries after falling on a stone as he and the deceased
walked
towards the hut which he (i.e. Mamukwa) had been thatching. The
reason for saying that to Plaxedes was that he wanted her
to confirm
his own version of what had happened to the deceased when Sekai
returned to the homestead, because he feared that Sekai
might not
believe him.




When Sekai returned to the homestead at about 4 p.m. on that day,
Mamukwa was not at home. He was at a beer drink at a neighbour’s
house.







However, Sekai saw Plaxedes who informed her that the deceased had
fallen on a stone, and was behind a certain hut on the premises.
She
went there and found the deceased lying on the ground under a tree.
He was sweating and groaning. His clothes were bloodstained,
and
when he coughed he spat out a mixture of blood and saliva. She
decided to bath him, and when she removed his clothes she observed
bruises on both sides of his neck which appeared to have been caused
by someone using his fingernails and applying some pressure
to the
deceased’s neck.







When she tried to make him sit up, his head and neck could not
maintain an upright position, but tilted to one side. When she
asked
him what had happened he said his uncle (meaning Mamukwa) had injured
him.







Mamukwa who had by then returned to the homestead, was present when
the deceased made that allegation. He, however, denied the
allegation and maintained that the deceased had fallen on a stone.







As it was too late, then, to take the deceased to Murombedzi
Clinic, Sekai decided that she would do that on the following day.







On the following morning she took the deceased, boarded a bus with
him and proceeded to Murombedzi Clinic. However, before she
reached
the clinic, the condition of the deceased deteriorated.







Fearing that the deceased might die at the clinic, when her parents
knew nothing about the deceased’s condition, she disembarked
from
the bus and took the deceased to her parents’ village where the
deceased died later that day.







Sekai was confused and did not know what to do. She did not report
the matter to the police. It was her parents who subsequently
made
the report, and Mamukwa was arrested.







After his arrest, Mamukwa made a warned and cautioned statement to
the police. He denied the allegation that he had murdered the
deceased, and stated inter alia that as the deceased was
walking at the homestead he:



“… fell, hitting against a stone very seriously with his chest
which I think caused his death. At that time Munashe started
bleeding through the mouth and the blood was coming from the chest
cavity. I did not see any wound on the outside of his body...
I do
not know where the bruises on the neck of the deceased came from.”







The post-mortem report compiled by Dr Nyazika who carried out the
post-mortem examination of the deceased’s body gives two causes
of
death. The first is cardiac tamponade, which is the compression of
the heart by an accumulation of fluid, in this case, blood,
in the
pericardial sac, i.e. the membranous sac enclosing the heart. The
doctor noted that the pericardium was full of blood, with
some of the
blood leaking into the chest cavity.







And the second cause of death given in the report is pericardial
effusion, which is the build-up of fluid or blood in the pericardium.
It was the doctor’s opinion, when he gave evidence at the trial,
that this could have been caused by trauma to the chest or to
the
neck.







He said the following:



“My conclusion was that the child was subjected to some force
around the neck and possibly the chest, and as a result of that force
and deprivation of oxygen, the child then developed the complications
that I observed, the pericardial effusion as a result of that
trauma,
which then led onto the cardiac tamponade.”







In his evidence at the trial, Mamukwa denied the charge and alleged
that the deceased had fallen on a stone. He added that on
the day in
question he drank five litres of sikokiyana, an alcoholic beverage,
and was drunk. He subsequently reduced the quantity
of the
sikokiyana he drank from five litres to two litres.







The trial court had to determine four issues. The first was
whether the deceased fell on a stone and sustained the injuries which
caused his death, as alleged by Mamukwa.







Dealing with that issue, the learned Judge in the court a quo
said:



“The Court has to determine whether the deceased fell on the stone
and thus sustained the injuries which caused death. The doctor’s
evidence corroborates Sekai’s on scratch marks being found on the
deceased’s neck. The alleged fall on a jagged stone could
not have
caused obvious scratch marks on both sides of (the) deceased’s
neck. While giving evidence under cross-examination, the
accused made
indications of how the child fell. He indicated the child falling
face forward. If injuries were to be found on the
neck and having
been caused by that fall, those injuries would have been at the front
part of the deceased’s neck, and not on both
sides. If the stone
was such that it would cause injuries to the extent of the sides of
the neck then there should have been injuries
all over the neck.







The doctor’s findings are consistent with the child having been
deliberately strangled … The fall on the stone could also not
have
caused pericardial effusion, which is caused by a denial of oxygen.
There is no evidence from the accused person himself that
the child
remained pressed on the stone for a long time. He said the child
fell and he immediately picked up the child by his waist.
How then
could the child have been starved of oxygen? The doctor’s finding
on pericardial effusion, like his finding on obvious
scratch marks on
both sides of the deceased’s neck, is consistent with
strangulation.”







I entirely agree with the learned Judge’s comments and conclusions.







The second issue which the trial court had to determine was the
identity of the person who inflicted the injuries on both sides of
the deceased’s neck and starved him of oxygen.







Dealing with that issue the learned Judge in the court a quo
said the following:



“The next question to be considered is: who starved the deceased of
oxygen and caused obvious scratch marks on both sides of his
neck?
We should seek to be sure that no one else had access to the child.
We also should exclude the possibility of other persons
having caused
these injuries. We know from the accused’s own story that the
deceased was left in his custody in a room they used
as their bedroom
hut. He is the one who went to attend to him when he woke up. He is
the one who fed the child and asked him if
he wanted to play with
other children. He told us the child said he did not want to play
with other children. He then took that
child to where he was
thatching a hut.







He does not say when he got to the house or the hut he found the
child in pain. He did not see any injuries on the child. He did
not
see the child coughing a mixture of blood and saliva. But he said
this happened when the child fell on a stone. In other words,
the
condition which caused the deceased’s death developed when the
child was in the sole custody of the accused person.







It is, therefore, clear that no one else other than the accused could
have caused that condition.”







Again, I agree with the learned trial Judge’s comments and
conclusions on the issue. Mamukwa did not say that some other person
inflicted the injuries on the deceased when the deceased was in his
custody, and his own version of how the deceased sustained the
injuries was correctly rejected.







In the circumstances, the only reasonable inference which can be
drawn is that the injuries in question were inflicted on the deceased
by Mamukwa.







Thirdly, the trial court had to determine whether Mamukwa was drunk
or under the influence of alcohol when he inflicted the injuries.

The learned Judge carefully considered the allegation of drunkenness
and rejected it. He said:



“He said he was drunk on the day in question. He said he had taken
5 litres of sikokiyana. He subsequently reduced the quantity
to 2
litres …







The evidence of Plaxedes clearly indicates that the accused person
was sober when she was called to see the child. So whatever was
done
to the child was done while the accused person was not under the
influence of alcohol. There is no reason why Plaxedes would
mislead
this Court on the accused’s sobriety against her own brother.







Sekai said when she left, the accused person was sober. The
accused’s own story gives a clear narration of events of the day.

In our view it would have been very difficult for a man who had
consumed 5 litres of sikokiyana to be so coherent about what happened
on the day in question. He gave clear details of how the child
indicated it had woken up, how he went there, how he fed it and how
he alleges the child fell and how he called his sister Plaxedes.







We are therefore of the view that the accused’s mental state was
not affected by anything at the time he committed the offence.”







I entirely agree. The allegation of drunkenness was an afterthought.
It was not contained in the warned and cautioned statement
made by
Mamukwa, and it was not mentioned in Mamukwa’s defence outline.







Finally, the trial court had to determine what was Mamukwa’s
intention when he inflicted the injuries. It found that he had an
actual intention to kill the deceased.







In this regard, the learned trial Judge commented as follows:



“The next question is on intention. In our view once we found that
the accused inflicted the injuries found on the neck of the
deceased
and caused the death as explained by the doctor there could be no
other intention in strangling the deceased besides wanting
to cause
his death. The scratch marks found on both sides of (the) deceased’s
neck cannot be explained in any other way.”







Bearing in mind the amount of pressure which must have been applied
to the deceased’s neck in order to inflict the injuries which
caused the deceased’s death, I cannot find any fault with the
learned trial Judge’s reasoning and conclusion.







It is, therefore, my view that Mamukwa was properly convicted.







In fact, what he said when he was asked if there was any reason why
the death sentence should not be passed, indicated that he was
at
that stage admitting having killed the deceased, though apparently
alleging that he had acted under the influence of alcohol.
He said
the following:



“My Lord, it is true that I take some alcohol, but in this case
this was a mistake and I was unable to appreciate what I was doing.”







After Mamukwa had been found guilty as charged, his counsel informed
the trial court that she was unable to address the court on
the issue
of extenuating circumstances. In my view, that attitude was not
surprising because there were in fact, no extenuating
circumstances,
and the death sentence was the only appropriate sentence.







The appeal is, therefore, devoid of merit and is dismissed in its
entirety.















ZIYAMBI JA: I agree















GWAUNZA JA: I agree















Pro deo