THE State V Maxwell Msindo

### Preamble
1
HB 193.19
HC (CRB) 55/19
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THE STATE

Versus

MAXWELL MSINDO

IN THE HIGH COURT OF ZIMBABWE

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

HWANGE CIRCUIT COUR T11, 13, 14 & 15 NOVEMBER 2019

Criminal Trial

B. Tshabalala for the state

Miss C. Manyeza for the accused

MABHIKWA J:	At the time of the commission of this offence, the accused was 24 years old whilst the deceased was 28.  He was charged with her murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act.  He denied the charge.  His defence was an alibi that on the alleged date of the murder, he was on his way to Zambia and not at the scene of crime at Inyathi.

Tracy Mpofu and Nomazulu Mnkandla told the court the story of what transpired on the fateful day that perhaps sounded like a “Friday the 13th” evening to them.

At about 1900 hours, 20 year old Nomazulu decided to go from Wilson Maphosa’s shop at Pinch Mine Business Centre at Inyathi to the dwelling houses to collect a jersey.  She saw the accused leaning against a durawall.  She was barely 3 metres away and she flashed him with a torch and noticed that it was him.  On her return, she found him still at the same spot.  He was wearing a blue pair of jean trousers and a blue T-shirt.  When she got to the shop, she advised others that she had seen the accused leaning against the wall.  When she told the deceased, the deceased responded that she did not want to see the accused at all neither did she want to talk to him.  Apparently, she had long terminated the love affair with the accused.

Late on that same evening at around 9pm, the deceased, Tracy Mpofu, Nomazulu Mnkandla and one Sonaphi also known as Vimbai’s mother (mai Vimbai) closed shop, handed cash to their employer and walked to their room about 100m away to sleep.  They walked in a single file in that order .  They had a big torch.  As the four ladies walked to their sleeping room with the deceased in front they got to the point where the 2nd witness had seen the accused.  He was still standing there and joined the file as they went past.  He overtook all others until he was ultimately behind the deceased.  He attempted to speak to the deceased who told him to leave her alone as she did not want to speak to him.

In fact according to Tracy Mpofu, the deceased and the accused appeared to have broken up and were no longer in love considering the events leading to the fatal incident.  She said this was so because on one occasion the accused paid a visit, knocked on the door but the deceased reminded him that she had long terminated the affair and was no longer interested in him and so she refused to open the door for him, telling him to leave her alone.

It was also the witness’ evidence that one day in the absence of the deceased, the accused cornered them in the room and asked them to tell him who “Sharon was now dating”.

It appears that by the time of the incident they ordinarily were afraid of the accused.

On the fateful day and when Sharon refused to talk to him, he grabbed her hand demanding to talk to her.  Sharon broke loose from the grip.  The accused then tripped her to the ground, sat on her whilst she was facing down and produced an axe from his waist area.  He then proceeded to strike her several times with the axe concentrating on the head area with Sharon wailing until she lay lifeless.  The accused took his axe and went away.

The deceased was apparently older than the witness and was the daughter of their employer, Wilson Mpofu and his wife.

When the attack took place they all watched helplessly in horror and utter disbelief as Sharon was ruthlessly murdered right in their eyes at practically the same place as they pointed to a distance barely 1 ½ metres from their toes.

Apart from the big torch, Tracy says that the place was illuminated by lights from nearby homes, the closest being only about 3 to 4 metres away.  After the murder of Sharon, they rushed to advise her parents.

This court has no difficulties whatsoever in accepting the evidence of the two eye-witnesses as the complete truth of what transpired that day.

Firstly, they had no reason to lie against the accused.  The accused himself stated and has in fact admitted that his relations with them were good.  He had no problems with them.

Secondly, these are witnesses who knew the accused so well for a number of months as their close colleague’s boyfriend.  It in fact appears that the deceased was like a sister to them.  The accused himself says he knows them well because one works at the shop, the other at the bar and the other at the restaurant.  He admitted even when asked by the court that the witnesses knew him very well.	In the circumstances, the issue of identification or mistaken identity fell off.

The third state witness Constable Trust Chirwa simply told the court that on 24 December 2018, one Chief Mkuni of Zambia approached him when he was doing border duties at Victoria Falls.  He intimated to him that he was in the company of the accused who had killed “his wife” in Zimbabwe and the deceased woman was haunting him so he desired to hand himself to the police.  The police officer confirmed from the accused whether that was true and the accused answered in the positive.  He arrested him and handed him over to Victoria Falls police as he is ordinarily stationed at Fairbridge police station in Bulawayo.

The accused’s defence started to crumble even during the state case but consequently collapsed during the defence case.  In fact, he had given an alibi that in the final analysis amounts to a bare denial with no way of proving or disproving it whether by the state or by him.

Ms Manyeza did well as she ultimately conceded that the accused had no valid defence in the circumstances.

There is no doubt from the facts and evidence in this matter that the accused is that kind of man who cannot stomach rejection.  A man with the mentality that, “If I cannot have her, then no one else can or should.”

He had made up his mind, carefully planned the attack, particularly if Sharon refused to talk to him again on that day.   He carried the deadly axe which the court viewed and can only describe as such – “deadly axe”.  She refused to talk to him and he proceeded with that day’s mission and accomplished it. The repeated attacks on the head in this senseless crime of passion shows that his only objective was to kill, even as conceded by Ms Manyeza for the defence.

Accordingly, the accused is found guilty of murder with actual intent.

Sentence

Accused is 24.  He has 3 children who are all very young.  He lost his job as a result of the offence.

The court has been urged to give him another chance. It was submitted also that it was mitigatory that he came back to hand himself on his own.  The court however believes that he came back only because he was haunted by the deceased.

However the accused committed a serious offence and savagely and brutally killed a woman he claimed and still claims to have loved as his wife, simply because he could not stomach rejection.

The court will stop at nothing in ensuring that our young people get used to the fact that life sacrosanct as it is, must be respected.  The accused, in macho style, brutally axed a defenceless lady in the full view of equally helpless lady colleagues, watching in horror.  The accused is 24 and this is the morning of his life and is still on the youthful side.

Further, premeditation only in the circumstances is not the kind of aggravating circumstance that would necessitate the death penalty.  The accused would be spurred death and life imprisonment but will certainly be removed from circulation in society for a considerable period.

Accordingly, the accused is sentenced to 30 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Ndove & Associates, accused’s legal practitioners