THE State V Freeman Mahlabezulu Munkuli

### Preamble
1
HB 202/19
HC (CRB 99/19
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THE STATE

Versus

FREEMAN MAHLABEZULU MUNKULI

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr T. E. Ndlovu & Mr J.L.M. Zulu

HWANGE CIRCUIT COURT 7, 8, 11, 14 & 15 NOVEMBER 2019

Criminal Trial

B. Tshabalala for the state

U. M. Nare for the accused

MABHIKWA J:	The facts of this matter make some very sad reading.  The accused was charged with murder in contravention of section 47 of the Criminal Law Codification and Reform Act for the murder of 86 year old Chilemba Mudenda by striking him with an axe once on the neck intending to kill him or realising a real risk or possibility that his conduct may cause the death of the said Chilemba Mudenda but nonetheless continued to engage in that conduct despite the risk or possibility.

The accused was further charged with attempted murder as defined in section 189 as read with section 49 of the Criminal Code in that on the same day the 8th of April 2018 at James Mudenda’s homestead, he attempted to cause the death of Terezia Munkuli by striking her with an axe once on the head intending to kill her or realising the real risk or possibility of causing her death but nonetheless persisted in that conduct notwithstanding the risk or possibility.

On the 3rd count, the accused was again charged with the crime of attempted murder, in that on the same day the 8th of April 2018 at James Mudenda’ homestead, he attempted to kill Sofia Siamulemba by striking her one on the head intending to kill her or realising the real risk or possibility of causing her death but nonetheless persisted in that conduct despite the risk or possibility.

The accused confirmed that he had understood the charges against him and pleaded not guilty to all 3 counts.  In his defence outline he stated that on the fateful day, he met the deceased as he came from work.  The deceased was having trouble in walking so he gave assistance by holding his hand and gave the deceased an axe to use as a walking stick or cane.  He said that the deceased then fell on the axe.  He says at that point, an unknown strange spirit descended upon him.  He had a series of black outs and hallucinations.  He started wondering about disoriented.  He then heard a female voice calling – “You want to kill me” but he never killed or attempted to kill anyone.  He only gained his orientation later at his home whilst playing with his child.

The state produced post mortem number 357-356-2018 by Dr Sangani Pesaanai in respect of the remains of Chilemba Mudenda as exhibit 6.  The doctor opined that the cause of death was:

Spinal cord injury

Cervical spine fractures

Chop wound

Assault

Also produced as exhibits were the medical reports of Terezia Munkuli and Sofia Siamuleba as exhibits 7 and 8 respectively.  Terezia had a 4cm scalp laceration whilst Sofia suffered a laceration on the head and another laceration on the chest.  All injuries were inflicted by a sharp object.  Also produced as exhibits were three (3) confirmed extra-curial statements by the accused.

Finally, the state produced as an exhibit a psychiatric report by Dr N.Mawere, a psychiatrist at Mlondolozi Special Institution in Bulawayo.

Selita Mudenda

The evidence of the 61 year old Selita was in short that on 8 April 2018, she was walking with her 86 year old husband when the accused caught up with them.  The accused said to her husband, “old man, you are a wizard”.  Selita said it was clear that the accused was serious and spoiling for a fight.  He was tense.  Sensing danger, she retreated unnoticed and hid in the nearby bushes from which she watched the rest of the unfolding events.  They were quick and decisive.  The witness indicated how the accused wielded an axe using both hands and struck her husband on the neck almost severing it.  The deceased immediately fell down lifeless.  The witness said on that day, it had rained.  The accused struck and sank the whole blade of his axe into the ground perhaps to clean the blood from his axe blade.

The witness rushed to call Robert Siasenke to report the killing of her husband.

Terezia Munkuli

The 41 year old Terezia Munkuli’s evidence was also short and precise.  The accused got to her home at around 1545 hours lividly looking for the 1st witness.  She told the accused that she had not seen Selita but the accused insisted that the witness was hiding Selita in her house.  The accused uttered the words that; “Selita is a witch and I want to kill her in the same manner I killed her husband at the fields.”  He demanded to be shown where Selita was hiding and suddenly without hesitation, struck the complainant once on the very middle top of her head.  The witness immediately fell down unconscious.

Sofia Siamulemba

This witness is 53 and like the others, she is a neighbour to the accused.  She was with the 2nd witness when the accused arrived at their home frantically looking for the 1st witness.   She too is related to Selita and her husband.  She watched in horror as the accused demanded the whereabouts of the 1st witness as he wanted to kill her in the manner he had killed her husband because she was bewitching him.  After striking the 2nd witness with the axe and as he continued demanding to be shown where Selita was hiding, the accused turned to her and struck her on the left side of the forehead with the axe.  He struck her on the temple and then struck her for the 3rd time on the chest near the collar bone.  With the accused in hot pursuit and calling them all witches, she ran for dear life towards one Mboniso’s homestead.  She budged into one of the rooms and locked herself inside.  Mboniso came running and curious to know what was happening.  The accused was at the time panting “baying for blood.  He demanded to be given some fire to burn down the hut that the complainant was hiding in.  Mboniso refused with fire and protected the witness.  She, together with Terezia were hospitalized for four (4) days.

Mboniso Ngwenya

He was seated at his parent’s home when Sofia came running and budged into his bedroom hut and locked herself in.  She was bleeding as she came running.  The accused also arrived almost immediately wielding an axe.  He refused to give him fire to burn the hut in which Sofia was hiding.  Suddenly Sifelani Mukombwe and Melisa Mwinde also arrived but by that time, the accused had walked away.  The witness and others followed the accused and ultimately arrested him.

All the five (5) witnesses were adamant that they have known the accused all his life and he is perfectly normal with no history of mental illness that they know of.  Most of the witnesses are in fact older than him.  This is corroborated by the Psychiatric report done by Dr N. Manwere.  It reveals that the accused was at the Mlondolozi Special Institution for a full year.

The doctor stated in the report that for a full year, there was no family affidavit to confirm his mental state and no mental instability was detected.  Instead, the accused related to the doctor a story of witchcraft which he held onto firmly, as the reason why he committed the crimes.  The doctor’s report also states that on 9 July 2019, the accused approached him and opened up that he was normal but had been pretending, trying to evade the murder charges by faking mental illness.  He intimated to the doctor that he was ready to have his day in court.

Finally, the doctor opinioned that at the time of the commission of the offence, the accused was not mentally disordered.   He had full appreciation of his wrongful actions and is fit to stand trial.

Needless to say, the accused once again tried to pool wool over the court’s face.  In his testimony he gave a very long, winding, endless and meaningless story difficult to follow.  But it was clear and there were a lot of aspects that showed clearly that the accused was again trying to feign madness.  This court will not bother going through all his feigned madness stories.  Suffices to say the court dismissed that feigned story in its entirety.

From the doctor’s report and from the evidence before us in court, we are satisfied that the accused strongly believed in some witchcraft allegations that led him to attack the deceased and the two complainants.  The axe (murder weapon) was lethal, sharp and may well have been sharpened for the murder mission.  The accused must have been planning the murder for some time and when he attacked on that day in the manner he did, he had one goal in mind – to kill.  Fortunately, two of his victims were hospitalized and did not die.	The case of State vs Mugwanda SC-215-01 defines actual intent to kill.  After defending the accused diligently and strenuously in the court’s opinion, Mr Nare must be commended for properly conceding that the accused has no defence at law.  He then conceded and associated himself with the state’s submissions.

Accordingly the court finds as follows:

Count 1         -	 the accused is found guilty of the murder of Chilemba Mudenda with actual intent

Count 2        -	 the accused is found guilty of the attempted murder of Terezia Munkuli

Count 3        -	 the accused is found guilty of the attempted murder of Sofia Siamuleba.

The accused is 32 years old and was 30 at the time.  He is married.  His wife is unemployed.  Has one child aged 3.  He has spent 19 months in pre-trial incarceration.  That just before passing of sentence and under oath, the accused sought to apologise to the court and the whole world for his conduct.	However, the court also notes that before this crucial time after conviction the accused had displayed and given an impression of a completely unrepentant though clutching to a bible each time he was in court.

What weighs heavily in his favour is his apparent strong belief in witchcraft and that he was being bewitched.  Though he denied it, a court was clear in the outline of state case, in the evidence of all the witnesses when he continuously said he wanted to kill the witches.  From his own evidence he also unwitting one stage said, “I said to myself, the witches have succeeded in fixing me.”  Ultimately Dr N. Manwere also confirmed that the accused had this strong allegation in him of witchcraft that he was holding onto.

The court is cognizant of the provisions of section 2 and 3 of the Criminal Laws Amendment Act No. 3 of 2016.  The accused’s conduct is aggravated by the fact that the murder was pre-meditated.  Also, the murder victim, the deceased was 85 years old making him way above the age of 70.

A helpless and defenceless 85 year old man needlessly lost his life because of strange beliefs in witchcraft which are supposed to be a thing of the past in these modern days of civilized society.  Yet people seem to revive these beliefs purportedly buoyed by advices from nyangas and tsikamutandas and even prophets   The courts will nonetheless pass very deterrent sentences as they frown at conduct that leads to such needless lose of life.  Life is not only precious but sacrocent.

Sentence

Accordingly the accused is sentenced as follows:

Count 1		-	 Life imprisonment

Count 2 and 3 		– 	10 years imprisonment

National Prosecuting Authority, state’s legal practitioners

Dube, Nkala & Company accused’s legal practitioners