The State v Yisa Phiri

### Preamble
1
HB 221/22
HC (CRB) 113/22
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THE STATE

Versus

YISA PHIRI

IN THE HIGH COURT OF ZIMBABWE

KABASA J with Assessors Mr. J. Sobantu and Mr. O. Dewa

BULAWAYO 26, 27 and 28 July 2022

Criminal Trial

M. Nyathi, for the state

E. Mlalazi, for the accused

KABASA J:	The accused is charged with murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  He pleaded not guilty.

The state’s case is that on 21st December 2021 the now deceased, who was the accused’s step-son, came home drunk at around 3a.m and started insulting the accused.  The now deceased’s mother intervened and succeeded in diffusing the situation.  Later that day at around 1400 hours the now deceased and the accused picked up from where they had left off with the earlier misunderstanding.  The accused took a rope, tied the now deceased’s hands and legs onto an old bed base and proceeded to assault him with a log.  When the accused’s wife and a co-tenant Sihle tried to restrain him he picked up a brick with which he assaulted the now deceased once on the forehead.  The now deceased was later ferried to Mpilo Hospital where he succumbed to his injuries on 24th December 2021.

In denying the charge the accused confirmed the altercation which occurred in the early hours of 21st December 2021.  He however said when he arrived home the now deceased had injuries as he had been assaulted at Amazulu Sports club.  He (the accused) later accompanied his wife to work and returned around 1400 hours.  The now deceased picked up on the earlier violent conduct and he was holding a metal rod with which he wanted to assault the accused.  The accused then picked up a wooden log and assaulted the deceased with it.  After successfully disarming the deceased he tied him to a metal base in order to restrain him.  He thereafter did not assault him further.  The injuries which led to the deceased’s death could have been inflicted on the night of the 20th December 2021.

To prove its case the state produced the post mortem report compiled by Doctor Jekenya and the accused’s confirmed warned and cautioned statement.  These were marked exhibit 1 and 2 respectively.

The evidence of 5 state witnesses was thereafter admitted as it appeared on the summary of the state case, in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07.  These witnesses are:-

1.	Dumisani Moyo

2.	Dr I Jekenya

3.	Patrick Muzondo

4.	Michael Ncube

5.	Charles Kabarapate

Dumisani Moyo is an ambulance technician who ferried the now deceased to hospital.  His undisputed evidence was that when he attended the scene around 2000 hours the now deceased could not walk or talk.  He noticed the following injuries:-

a)	three wounds on the head

b)	one deep cut on the forehead

c)	two small cuts above the left eyebrow

d)	swollen body on upper and lower limbs and the now deceased was experiencing difficulty in breathing.  He advised the now deceased’s mother to report the matter to the police.

Doctor I Jekenya is the doctor who conducted the post mortem after the deceased’s death.  The report chronicled a history which was what he heard from the nurses who first attended to the deceased.  We placed no value on this history which was largely hear say.  He however observed the following marks of violence.

a)	bilateral closed ulnar fractures, fragmental fractures of the distal quarter of the right and left ulnar bones (forearms)

b)	sutured 3cm oblique wound upslanting to the middle face just above the right eyebrow.

c)	3cm sutured wound at the middle part of the left forehead and 2, 5 cm above the left eyebrow upslanting the middle of the face.

d)	both upper limbs extensively bruised by whiplash like injuries and focal early bruising.

e)	Loss of blood had caused severe pallor to the eyes, conjunctiva, lips, tongue, gums, finger nails, toe nails both palmar and plantar surfaces.

The doctor concluded that the cause of death was:-

a)	compartmental syndromes and anaemia

b)	severe muscle trauma

Patrick Muzondo, Michael Ncube and Charles Kabarapate are police officers who received information anonymously relating to the deceased’s death.  No report had been made to the police and after receipt of this information on 28th January 2022 they visited Mpilo hospital and obtained the deceased’s details.  The accused was subsequently arrested and a warned and cautioned statement was recorded from him and later confirmed.

The accused said the following in the confirmed warned and cautioned statement:-

“I do admit to assaulting Tafadzwa Sibanda after engaging in a fight.  I assaulted him with hands and also kicked him.”

Evidence was thereafter led from 3 state witnesses, that is, the accused’s customary law wife Sipho Malunga, his step-daughter Roselyn Kanda and the co-tenant Sihle Nleya.

The gist of Sipho Malunga’s evidence was that on 21st December 2021 the now deceased had come home drunk and started insulting the accused whilst armed with a metal bar.  He had visible injuries just above the eyes.  She later left for work and returned around 18 00 hours.  The accused was holding a switch whilst the now deceased was tied to a base of a bed and had a wound somewhere on his face.  She however did not witness any assault by the accused on the deceased.

We must say this witness was at pains to narrate what she described as the now deceased’s bad behaviour and appeared very eager and comfortable to narrate such whilst she had difficulty responding to questions relating to what the accused did on the evening of the 21st December 2021.

It was evident she was being economical with the truth.  She was not a credible witness.

The second witness was the first witness’s daughter and accused’s step-daughter.  The gist of her evidence was that she was called by her mother who was crying and when she arrived at her mother’s house she found the now deceased lying on a cushion and had injuries on his forehead.  His arms were swollen.  He could not talk.  She then called for an ambulance.

When she asked her mother what had happened she appeared frightened and was shaking but told her that the now deceased had been picked up by some people at Amazulu and brought home.

This witness’s evidence was straightforward and to the point.  She did not seek to embellish her evidence by suggesting that she knew or witnessed what had caused the injuries she observed on her brother.

Her evidence was corroborated by the ambulance technician who confirmed that he too could not talk to the deceased as he was unable to talk.

The accused sought to suggest that this witness had lied that the now deceased could not talk and yet the ambulance technician’s evidence was admitted in terms of section 314, which evidence confirmed the accused’s step-daughter’s account regarding the now deceased’s condition.  This witness came to the scene after the accused’s step-daughter telephoned for an ambulance.  Is it therefore being suggested that the now deceased was well enough to talk but took a turn for the worse in the period between the phone call and the arrival of the ambulance crew?  Nothing could be further from the truth and we say so because accused’s wife was crying already when she called her daughter.  This was indicative of the bad condition she saw the now deceased was in.  Why would she have looked frightened and even shaking if the now deceased was not in a bad condition and his state was as she had earlier on seen him when he came around 3 a.m. from Amazulu? Was her reaction not indicative of the fact that she knew the now deceased’s condition was attributable to the accused and not to any prior assault? We think it is.

Why was the mother mentioning an assault at Amazulu and that the now deceased had been brought home by some people, seemingly explaining the bad condition her son was in almost 17 hours from the time she said he had come home drunk.  Why not mention that she had untied him from the base of a bed where he had been tied by her husband?

It became clear that the accused and his wife were out to mislead the court.  This is the reason why a police report was never made yet the ambulance technician had advised her to report the matter to the police.  Were it not for the anonymous tip off the deceased’ death would probably have been swept under the carpet with no one being called to account.

We were satisfied Roselyn Kanda, the second witness was truthful in her evidence.

The third witness was the co-tenant, Sihle Nleya.  Her evidence was that she had been woken up earlier on that day, the 21st December 2021 by noise and this was from the now deceased who was shouting insulting accused.  The now deceased was in the habit of insulting his step-father and threatening to assault him.

She however did not witness any assault that morning and she left for work so did the now deceased’s mother.  She returned home around 6 p.m. and met the now deceased’s mother at the gate. The deceased’s mother asked her to help restrain the accused.  Together they went into the room in which the deceased was tied to the base of a bed.  The accused was armed with a log and promptly told his wife that now that she had arrived he wanted her to witness him killing the now deceased.  He got into the room where the now deceased was lying tied to the bed base and used the log to assault him on the arms, from the upper arms to lower down.  His wife pleaded with him to stop and got hold of the log, whereupon the accused picked a stone which he used to assault the now deceased on the forehead.  She screamed when the accused used the stone and the now deceased was pleading with her to ask the accused to forgive him.

Like the second witness, this witness gave her evidence well and without rancour.  We got the distinct impression that she was merely relating what she knew to have happened and nothing more.

Her description of the injuries she observed on the now deceased and the manner in which such injuries were inflicted found support in the post mortem report.

The accused sought to suggest that this witness did not get along with his wife and so decided to get back at his wife by giving false testimony.

It would appear the accused had to have some explanation when it came to trying to discredit a witness whose evidence was at variance with what he wanted the court to believe.

Sihle was candid in her admission that the now deceased was quarrelsome and was always on his step-father’s case.  She was equally candid in her description of the earlier events which occurred at around 4 a.m. that same day.

She was a credible witness whose evidence we were satisfied could be safely relied on.  We would say she is an independent witness who just happens to be a co-tenant at this house where accused, now deceased and his mother were staying.

Her evidence made it clear that the now deceased was assaulted whilst restrained and therefore posing no threat to the accused.

We are alive to the fact that accused’s wife was a state witness and she was not impeached.  That said, is the court expected to place weight on a witness who clearly showed her partiality and was bent on being economical with the truth?  Is the court to say because she was a state witness, the state case was irretrievably destroyed because of her testimony?  If she was the only witness the state had to rely on then yes the court would come to such a conclusion.  However she was not the only witness and her evidence was clearly shown to be contrived.  The court has to look at the totality of the evidence and not take a myopic view, especially given the reliability of the rest of the evidence, including medical evidence.

We are equally aware that an accused person need not convince the court as to the truthfulness of his story.  As was stated in R v Difford 1937 AD 370, whatever explanation he gives no matter how improbable it may be, the court cannot dismiss it unless it has been shown to be not only improbable but beyond doubt false.  (See also S v Kurauone HH 961-15)

The accused’s story must not be looked at in isolation but must be juxtaposed to the entire evidence before the court.  The totality of the evidence must therefore determine the matter.

We found the accused’s story improbable.  This is so because he wanted to create an impression that the now deceased came home already injured in the early hours of the 21st December 2021.  If he was so injured as to succumb to such injuries barely 2 days later, would he have fought with the ferocity the accused sought to portray?  If his arms had the fractures observed by the doctor where did he find the stamina to run around wielding a weapon and posing a threat to the accused? The accused also sought to suggest that he did not use a weapon in assaulting the deceased and yet a weapon was used. It was clear the accused and his wife were scheming and that is why they had not reported the matter to the police. When the matter was eventually reported and a warned and cautioned statement recorded from the accused, he did not mention that he had tied the deceased and that weapons were used in assaulting him. This points to a scheming mind, a contrived story meant to minimise the accused’s liability in causing the deceased’s death.

What happened between the time accused and his wife, including Sihle, left home around 7 a.m. and the time Sihle and accused’s wife returned around 6 p.m. to find the now deceased tied to a bed base?  Unfortunately the now deceased did not live to tell his story, so it could be that the accused was provoked by the now deceased.

If he was provoked would he not have reacted there and then, rather than tie him up and then mete out the vicious assault around 6 p.m. when he had been home around 1400 hours.  Why wait for his wife’s return?  A person who is so provoked as to lose control does not wait to react at a certain time.  They react in the heat of the moment.

Section 239 of the Criminal Law Code, Chapter 9:23 provides that provocation can be a partial defence on a charge of murder where the accused has completely lost his self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

We are however mindful of the fact that we do not have anything to controvert the possibility of provocation which led to the accused tying the deceased up.  We also are not aware of when the deceased was tied up so as to definitively conclude that the accused was not provoked.  We are aware that the now deceased was a difficult child as shown by the evidence and had been quarrelsome earlier that day.

The accused however proffered a defence of self-defence.  In terms of section 253 of the Criminal Law Code, there are requirements which must be met for such a defence to be available to one who proffers it.

1.	There must be an unlawful attack which had commenced or was imminent.

2.	The action taken to avert such attack must be necessary and there was no avenue of escape.

3.	The means used to avert the attack was reasonable in the circumstances and

4.	The harm caused to the attacker was not grossly disproportionate to that liable to be caused by the unlawful attack.

We have already accepted that the now deceased was assaulted whilst he was tied up.  He was restrained and so posed no threat at the time of the assault.

The assault was therefore meted out as a way of punishing him for his wayward behaviour and not in self-defence.

We are therefore satisfied that there was no self-defence.  In saying so we are alive to the fact that the court must not adopt an armchair approach.

In S v Farai Kapenya and Anor HH 14-2018 HUNGWE J (as he then was) had this to say:-

“The question whether an accused can successfully claim the defence of private defence is determined by examining objectively the nature of the attack and defence to determine whether they conform to the principles of law that are set out above.  This means that each requirement of the attack and defence must be judged from an external perspective rather than in terms of accused’s perceptions and his assessment of the position at the time he resorted to private defence.  In applying this test, the court must be careful to avoid the role of arm-chair critic ….. weighing the matter in the secluded security of the court room.  Instead the court must adopt a robust attitude, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self-defence.  See S v Ntuli 1975 (1) SA 429 (A) at 436 D.”

Whilst being cognisant of the warning by HUNGWE J, we are of the considered view that there was no attack at the time the injuries which claimed the deceased’s life were inflicted.

That said however, from the totality of the evidence and the undisputed behaviour of the now deceased towards his step-father, can it be said the accused desired death and that was his aim and object? (State v Herold Moyo HB 19-17). We think not.

We are not persuaded to accept that the accused notwithstanding his utterances to his wife, desired to bring about the death of the now deceased and succeeded in doing so.  (S v Mugwanda 2002 (1) ZLR 547 (S), S v Jealous Tomasi HH 217-16)

The repeated acts of provocation testified to by the witnesses and the apparent hostility the now deceased harboured towards his step-father exhibited over a protracted period of time must have influenced the manner in which the accused reacted on this day.

We are of the considered view that we cannot ignore all the circumstances, notwithstanding the fact that the accused emphasised self-defence and not provocation, and hold that he must have foreseen or realised that the assault could result in death but continued nonetheless despite that realisation.

He however was negligent in failing to realise that death may result from his conduct.

We are accordingly satisfied that the state has not proved murder beyond a reasonable doubt but proved the lesser offence of culpable homicide.

The accused is accordingly found Not Guilty of murder but guilty of culpable homicide as defined in section 49 (a) of the Criminal Law Code, Chapter 9:23.

Reasons for Sentence

In assessing sentence the court considered that the accused is a 49 year old first offender.  He stands convicted of a lesser crime of culpable homicide.

The deceased who was his step-son was a difficult child who picked on the accused over a period of time.  He appears to have had no respect for his step-father, probably due to their age difference as he was 33 compared to the accused’s 49 years.  As a child he ought to have respected the accused as the father of the home.  The death of the deceased is likely going to haunt the accused for the rest of his life.

In aggravation, is the fact that a life was unnecessarily lost.  A young man lost his life at the hands of a man who ought to have protected him as a father.  A problematic child is still a child and does not deserve to be assaulted to death. Domestic violence is wreaking havoc in many homes and the courts must frown upon such by meting out sentences which show its abhorrence of this sad phenomenon.

The courts have time without number urged society to respect the sanctity of life.  Where such respect is absent the courts must frown upon the taking of life and mete out exemplary sentences.

The sentence must however fit the offender, the offence and be fair to society.

In R v Richards 2001 (1) ZLR 129 (S) the Supreme Court had this to say:-

“The accused is not being punished for his evil intent, for he had no intent at all, but for being careless.  The function of punishment in this situation is not so much to punish wrong doing as to inculcate caution in the citizenry and encourage attentiveness to the safety of others.  The function of the crime of culpable homicide is as much educative as it is corrective.”

It is not so much the length of imprisonment but imprisonment itself as the imprisonment he is likely to be in psychologically is more than that which the four walls of a prison cell will be.

In the circumstances the following will be appropriate and meets the justice of the case.

Sentence

4 years imprisonment of which 1 year is suspended for 5 years on condition the accused did not within that period commit any offence of which an assault on the person of another is an element and for  which upon conviction he is sentenced to a term of imprisonment without the option of a fine.

Effective:	 3 years imprisonment

National Prosecuting Authority, state’s legal practitioners

Dube-Banda, Nzarayapenga & Partners, accused’s legal practitioners