THE State V Mayor Magusvi

### Preamble
1
HB 265/20
HC (CRB) 83/20
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THE STATE

Versus

MAYOR MAGUSVI

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Ms C J Baye and Mr A.B Mpofu

GWERU 25, 29 AND 30 SEPTEMBER 2020

Criminal Trial

M Shumba, for the state

M Mapfumo, for the accused

MABHIKWA J:	The accused faces a murder charge as defined in section 47 (1) of the Criminal Code.  He denies the charge completely.

In short, the accused was 30 at the time the offence was committed.  The deceased was his father and aged 78.  Apparently, the accused believed that his father and his aunt were bewitching him.  On the fateful day on 27 January 2018, he took an axe and went to his father’s homestead where he lived with his younger wife.  When he got to the homestead, he simply uttered the words “you want me to die.” He was furious and carrying the axe.  The other two (2) gentlemen who were eating sadza with his father, who had been contracted to build a toilet actually fled the scene.  The accused struck the hapless 78 year old three (3) times on the head with the axe.  The deceased fell down.  The accused took a shovel from the toilet under construction.  He used it to pummel the old man several times all over the body with it.  The father died immediately.

Juliet Muleya is a step mother of the accused.  The accused being a son to the deceased and his first wife.  She told the court how she witnessed the events of the day unfold.  She had prepared the afternoon meal.  She gave it to members of the family to eat including the deceased and two (2) gentlemen who were building a toilet at the home.  She and her daughter went into the kitchen to eat.

Just as they were preparing to eat, there was commotion emanating from outside.  They rushed out.  They found and watched the accused holding an axe striking the deceased with it.  Like a horror movie, she and her daughter watched this brutal attack from just about 24 paces.  Nothing obscured her visibility and she saw everything that happened when her husband was killed.  She even demonstrated how the axe was used to strike the deceased.  She was certain that the accused had brought it.  The blows were directed on the head.  It is her evidence that the first blow was delivered when the deceased was still standing.  The second and third blows were delivered when the deceased had fallen down to the ground on his belly.  After the third blow, the accused proceeded to take a shovel and strike the deceased using its back several times on the body.  She knew the shovel well.  Muleya herself saw four (4) blows of the shovel before she rushed to call people at a beer drink.  It was Musa and Lovemore Magusvi, the other 2 sons of the deceased who came and made arrangements to report to the police.  The witness also said she did not know of any witchcraft or any talks of witchcraft between the accused and her late husband.  She also did not know of an incident where her late husband allegedly went to tell the accused’s in-laws to come and collect their daughter because the accused was mentally unstable.

The evidence by Muleya was corroborated by that of Cecilia Magusvi, Wellington Bhiza and Musa Magusvi which was produced without objection in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07.  The evidence is also corroborated by the accused’s own confirmed warned and cautioned statement.  On 11 May 2018 at Gokwe Prison, the accused had a statement recorded from him by Constable Mutsengi.  He admitted that he murdered his father by striking him thrice on the head with a shovel.  There was no mention of an axe at all by him.  In his evidence in chief, again there was no mention of the use of an axe as well as in cross-examination.  He maintained that he brought the axe to the scene but did not use it.  In his defence outline, there is no mention at all of an axe and whether or not he used it.  The consistency is striking.  It cannot be maintained by a person who did not know what was happening at the time the crime was committed.  Ironically also, when he was asked by his own counsel to demonstrate how he struck the deceased with a shovel, he made indications that were almost identical to those made by the state witness including the use of the back of the shovel.

In fact Mr Shumba for the state summarised it more aptly that the defence now wants this court to believe that at the time of the murder, the accused was not aware of what he was doing.  However the following were clear.

(1)	In his verbal testimony, the accused was able to detail how he started his journey from his own homestead to that of the deceased.

(2)	He was able to tell this court that he armed himself with an axe.

(3)	He was able and he remembers the details that he walked to the deceased’s homestead for two (2) km without losing his way.

(4)	He also remembers and details his use of the shovel (4th exhibit) on the deceased.  What he leaves out consistently from the police statement in May 2018 up to now is the use of the axe.

(5)	That however, the admission of the evidence of Cecilia Magusvi and to some extent that of Constable Timothy Mutsengi in terms of section 314 of the Criminal Procedure and Evidence Act implies acceptance that he used the axe.

We indeed agree with Mr Shumba that inspite of the evidence of what transpired, it is clear that the accused’s denial of the use of the axe (exhibit 3) was deliberately calculated to reduce his moral blameworthiness.  Sadly, the accused could not provide the court with a plausible defence, as at least one that can be described as being reasonably possibly true.  In his defence outline.  He claims to have been extremely provoked and that he was not in his sound and sober senses when he committed the offence, yet he remembers vividly the events as they unfolded.  He narrates and sticks to those events.  On the other hand in his evidence in-chief, he said that the deceased did not provoke him.  From his evidence, it is Mabhugu who provoked him and the society which mocked him.  Belatedly, when asked by his counsel, the accused said that his father went to his in-laws and implored them to take back their daughter as he suspected the accused of a mental problem.  It should be noted that he did not even see his father going to his in-laws and making that request.  It is all village gossip.  He says later the in-laws came to collect the wife but she was not present so they did not collect her.  The in-laws proceeded to chat with Muleya and went away.  What he now wants to tell the court in our view is that at the time of his arrest for this offence his wife had left him because of what his father had allegedly told his in-laws.  This story, even it were to be believed, is one that could not make any one be provoked to the point of losing one’s mental faculties as alleged.  It was clearly not a heat of the moment incident either.  Further, when asked by his own counsel, the accused admitted that a psychology specialist, Doctor Mawere examined him and concluded that he was not mentally disturbed at the time he committed the offence.  What comes out clearly from his defence as submitted by the state is that the accused was miserable because the village kept mocking him.  He himself believed in witchcraft or at least eventually did so.  We believe that he took an axe and went to his father, not because he could not appreciate what he was doing, but because he hated him because of the polygamous set up as well as his belief in witchcraft.  He got there and struck him in the manner described by the state witness and the postmortem report 91-90-2018 by Doctor S Pesanai.  By way of marks of violence, the Doctor observed extensive lacerations, multiple fractures and massive haemorrhages.  He concluded that the cause of death was:

1.	Extensive subarachnoid haemorrhage

2.	Depressed skull fractures

3.	Assault

In State v Hamunakwadi HH 323-15 the matter involved provocation and killing as a result of belief in witchcraft.  It was discussed that many cultures across Africa embrace traditional healers and persistent belief in witchcraft.  The African concept of a witch was also discussed.  The basic elements required for a successful defence of witchcraft provocation should be, as follows;

a)	The act causing death must be proved to have been done in the heat of the passion, that is in anger. Fear alone, even fear of immediate death, is not enough.

(b)	The victim must have been performing, in the presence of the accused, some act which the accused genuinely believed, and which an ordinary reasonable person of the community to which the accused belonged, would genuinely believe to be an act of witchcraft against him or another person under his immediate care.

(c)	A belief in witchcraft per se does not constitute a circumstance of excuses or mitigation for killing a person believed to be a witch when there is no immediate act of provocation.

(d)	  The provocation must not only be grave but also sudden and the killing must have been done in the heat of passion.

In the Hamunakwadi case, which is similar to the current case, a son killed his mother in 2006.  The mother denied him the right to marry.  She also remonstrated with him in 2012 when he decided to marry.  She even boycotted the traditional ceremony to welcome the new daughter in-law.  The accused had problems which he outlined in his confirmed warned and cautioned statement as well as his defence outline.  The problems persisted.  Believing the mother was bewitching him, he killed her.  Section 239 (1) of the Criminal Code was also discussed in that matter.  It was held that the court may regard the provocation as mitigatory only.  Section 238 provides that provocation shall not be a defence to crimes, other than murder.  Even then, it is not a complete defence.  In appropriate cases where it is upheld that there is no intention and as a result, where there is no realization refered to in section 47 but complete loss of self control in the circumstances, it can only reduce murder to culpable homicide.

See also State v Gambaya 1998 (1) ZLR 364.

As correctly cited by the state, an intention to kill can be inferred by considering the following factors among others;

a)	The number of blows delivered.

b)	The type of weapon used to deliver the blows.

c)	The force applied in delivering the blows.

d)	The part of the body the blows are directed or aimed at.

e)	The nature of the injuries sustained in the attack.

In the current case, there is no doubt, and in fact it is admitted that all these requirements were met.  We are satisfied from our assessment of the evidence placed before us that the accused believed, rightly or wrongly, that his father was a wizard. He believed the father was responsible for all his misfortunes, real or imagined hence the utterance to his father - “You want me to die.”

As already stated above, the wounds were numerous, deep and excessive.  The deceased was attacked whilst lying down for most of the time.  He never got up after the attack.  He died instantly, with no chance for him to survive the attack.  It is beyond dispute that the murder was as callous as it was meant to be and to those watching, it must have looked like a horror movie if it forced two (2) grown men to flee instead of intervening.  It was executed with actual intent.

We accordingly find the accused guilty of murder with actual intent.

Sentence

In assessing sentence, the court will take into account all that was said by counsel in accused’s favour.

The murder was committed against an old man.  The state outline gives his age at death as 78 whilst the post mortem gives it as 70.  He was attacked by a 30 year old man, his own son and never retaliated until his death.  The court has nonetheless been urged to consider that every person has a right to life in terms of section 48 (1) of the Constitution of Zimbabwe.  The court was also urged to consider that the accused committed the murder on a strong belief in witchcraft.  The accused is now 32.  He was not employed.  He had no children.  He had no assets and his wife had left him.  He is a first offender.

However, the accused committed a very serious murder in a very brutal attack.  This attack on his own father simply because society was taunting him and then he believed that his father and his aunt were bewitching him.  The murder was thus premeditated.  It is true that life is God-given and is lived only once.  Life is sacrosanct and could not be taken away by anyone under whatever circumstances, let alone in a very callous, gruesome and brutal way.  The court is properly guided by the case of the State v Lovemore Simony HH 50-95.

There is no question that the attack on the deceased, a defenceless old man was a surprise attack and was callously vicious.  Deep, penetrating injuries with an axe were  inflicted.  These courts will not stand akimbo and watch the use of violence in revenge and the resolution of “strange” beliefs or slightest provocation.  A 30 year old man who kills his own 78 father that viciously over the belief that he is bewitching him has little excuse and deserves no mercy from the court.  In any event why on earth would a parent give birth to him, look after him during his very vulnerable infant and young years suddenly bewitch and want him dead.  Both counsel have not advocated for the death penalty or life imprisonment.  They have called for long imprisonment of about 25, and the state prays for more than 25 years imprisonment.  What appears to have persuaded both counsel and this court is the accused’s belief in witchcraft, village gossip and his alleged miserable life.  He also accepted that he killed his father.

This court is aware that in sentencing the accused, it must primarily consider the accused’s peculiar circumstances, the offence itself, and the interests of justice.  The court will nonetheless impose an exemplary sentence that reflects its revulsion at such brutal use of axes, knives, machetes and similarly dangerous weapons to commit murder.  A lengthy custodial sentence is called for and the following sentence is deemed appropriate.

The accused is sentenced to 30 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mapfumo Mavese & Associates, accused’s legal practitioners