THE State V Isaac Mashonga

### Preamble
1
HCC 40/25
HCCR 1598/24
---------


THE STATE

Versus

ISAAC MASHONGA

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 18 March, 13May & 1 July 2025

Assessors:	1. Mr. Manyangadze

2. Mr. Mutayiwa

Criminal Trial

K. Teveraishe, for the State

F. Antonio, for the accused

MUZOFA J:

Introduction

[1] Life, is at times complicated and more nuanced than we would like it to be. No parent can imagine one of his or her child behead his sibling in their kitchen. This is what Champion Mashonga a 93-year-old man and his wife woke up to on the 14th of July 2017 at Mashonga Village, Zvipani, Magunje. The accused was arrested for the murder of his sister.

[2] As if that was not enough for this elderly couple, the accused was struck with blindness on the eve of his trial. The trial was held in abeyance for the accused to be examined before continuation. The prisons opticians confirmed that he is now 80% blind. For this elderly couple they have lost two children at the same time one through death and one through incarceration.

[3] The trial proceeded despite his new condition, generally disability is not a bar to criminal proceedings. It is only where an accused suffers from mental incapacity that a trial is suspended pending examination.

Factual Background

[4] The accused and the deceased were siblings. On the 14th of July 2017 at dawn, the deceased Dadirai Mashonga’s headless body was found by her mother in their kitchen with gushes of blood all over the room. The shocked mother advised her husband the deceased and accused’s father who notified other villagers about this shocking incident. Villagers gathered at the homestead shell shocked with many unanswered questions.

[5] Coincidentally the accused later arrived at the scene, in bloody clothes. The villagers took no prisoners they suspected something fishy from the accused’s clothes and probably his conduct. They apprehended him, tied his hands. He was subsequently jointly charged with one Robert Tichareva ‘Robert’ who has since passed away with the murder of the deceased. The accused denied the charge and raised involuntary intoxication as his defence.

[6] Although the accused lived with his parents at Mashonga Village, he spent most of his time at Zvipani Business Centre where he operated a canteen. At times he would spend nights there.

[7] According to the State, the accused, together with the late Robert a local businessman proceeded to the accused’s residence on the 13th of July 2017 at night. The purpose of the visit is disputed. The State avers that the two had connived to kill the deceased by beheading her for ritual purposes to boost the late Robert’s business. The accused was the hired gun to do the dirty work at a cost of US$4 000.00 for killing his sister. The accused on the other side said he accompanied the late Robert. The two found the deceased fast asleep. Robert beheaded her using a kitchen knife, an axe and an adze. They took the head to the shopping centre where it was hidden in a dilapidated building.

[8] Some background information about the late Robert is necessary to contextualize this case. According to the State the late Robert was a well-known businessman. He owned a business complex at Zvipani shopping centre. The accused was a tenant using one of the rooms as a canteen. When this offence was committed, the accused and the late Robert were arrested and remanded in custody. While in custody before trial the late Robert died. Thus, the accused is facing the charge of murder alone.

The State Case

[9] With the consent of the defence the State opened its case by tendering the following exhibits:

The post mortem report in which Doctor Pazaro who examined the deceased’s remains concluded that death was due to decapitation. It was marked exhibit 1.

The sketch plan drawn from accused and State witnesses’ indications marked exhibit 2.

Photographs of the deceased’s decapitated head and headless body marked exhibits 3 to 8 respectively.

[10] The evidence of five witnesses, Keredia Mashonga, Gabriel Simon, Munetsi Ncube, Cain Muchinga and Doctor Emmerson Pazaro was formally admitted in terms of s134 of the Criminal Procedure and Evidence Act [Chapter 9:03].

[11] The admitted evidence was as follows:

Keredia Mashonga

[12] She was the deceased and accused’s mother. She left deceased at their homestead on the 13th of July 2017 proceeding to an all-night prayer meeting. When she returned on the 14th in the morning, she discovered the deceased’s headless body in their kitchen. She reported to her husband, Champion Mashonga.

Gabriel Simon

[13] He was a local villager and a member of the local neighborhood police in Zvipani. On the 14th of July 2017 around 1200hours he was at Zvipani shopping centre. He heard some noise behind late Robert’s shops. To satisfy his curiosity he went to the scene. He saw the accused tied with a rope. It was alleged he had killed the deceased. The accused sat near a blood-stained green satchel which had a human head inside. He handcuffed the accused, secured the satchel with its contents. He later handed over the accused and the satchel to Detective Assistant Inspector Muchingami.

Cain Muchinga and Munetsi Ncube

[14] The two were police officers stationed at Karoi CID and photographic unit respectively. Cain was the Investigation Officer who recorded statements from the accused and witnesses. He also recovered the accused’s blood-stained clothes and sent them for forensic evaluation. Munetsi took photographs which were produced by consent as exhibits.

Doctor Pazaro

[15] He examined the deceased’s remains and completed the post mortem report.

[16] Four witnesses gave oral evidence as follows.

Champion Mashonga

[17] The 93-year-old father to both the deceased and accused gave his evidence seated due to age. Despite his age he gave his evidence with clarity.

[18] On the fateful day, his wife went to attend an all-night prayer. He remained at home with the deceased who slept in a separate room. The accused lived with them but would spend nights at the shopping centre at times.

[19] On the fateful day, he was advised by his wife about the deceased’s headless body. When he went to investigate, he saw the deceased’s body and identified her through her legs. He then advised other villagers mostly their fellow church members. He decided to go to the shopping centre to see one late Robert commonly known by his alias ‘Giant’ to get police contact details. He did not have them, when he eventually contacted the police, he was advised that the perpetrators had already been arrested.

[20] He said the accused confessed and showed the police the weapons he used. He did not know the motive behind the killing. He said the accused did not drink beer. The accused and deceased as his children had a good relationship.

Shadreck Madamombe

[21] A retired soldier aged 60 years. He resides at Gwerenha village Zvipani. On the 14th of July 2017 he went to the shopping centre to purchase some fuel. At the Centre he received information that someone was beheaded the previous night. He immediately started to investigate. He interviewed the deceased’s father and three brothers.

[22] Subsequently his efforts led him to the accused. By then he did not know the accused. He proceeded to the accused’s homestead. He finally located the accused at his parents’ homestead. He had blood-stained clothes. He tied the accused using a rope.

[23] The accused explained how he committed the offence and the motive. The accused was taken to the shops where he indicated where he hid the satchel which was recovered. The community members bayed for the accused’s blood. His brothers and community members irked by such abhorrent behavior wanted to assault him. He directed the late Robert and accused to be kept in a room for their safety.

[24] He said he recovered a cellphone with communication between the accused and the late Robert. The two had planned how they will execute the murder and the amount that the accused was to be paid. The accused shared the phone with her mother. However, the phone and the messages were not produced before the court. When he eventually asked the accused about the offence, he explained that when he arrived at the homestead, he entered the kitchen where the deceased slept and strangled her. He then cut the throat using a knife and an axe. According to this witness he even explained that he levelled the neck chiseling it with an adze.

[25] Under cross examination he denied that the accused was assaulted. He insisted that he restrained the accused’s brothers from assaulting him. In fact, one of the brothers had a crow bar to assault the accused. They could have killed him too.

David Munyuki

[26] He was 64 years by then, residing at Munyuki village, Zvipani. On the 14th of July 2017 he went to the Business Centre. On arrival he noticed some village heads whispering about the unheard of that happened in the village. They were in the company of Shadreck Madamombe. He learnt that the deceased was decapitated and her brother was the primary suspect since he had blood-stained clothes.

[27] Together they used local transport and went to the accused’s homestead. Shortly after arrival the accused arrived. The mob tried to assault him but they restrained them. Shadreck was part of the people who went to the accused’s homestead. Under cross-examination he catapulted and said the accused was assaulted by the people.  The village heads and Shadreck restrained the people.

[28] The accused confessed and made indications. He said he was sent by Giant (the late Robert). He led the way until he got behind the shops. In a disused toilet the accused retrieved a satchel bag with deceased’s head. He was then handed over to the police. David denied that the late Robert killed deceased insisting that it was the accused, because he confessed in his presence.

[29] Although he could not dispute what was suggested that Giant killed the deceased, he was adamant that the blood on the accused’s clothes was not from chickens but human blood.  The defence counsel had suggested that the accused had slaughtered chickens early that morning.  He did not change his clothes but proceeded to his parents’ homestead to report that Giant had killed the deceased.

[30] The State then closed its case.

The Accused’s Case

[31] Strangely the accused turned blind on the eve of the trial date. He was literally held by hand to the witness stand where he adopted his defence outline and opted to explain what transpired on the day.

[32] In his evidence in chief, he insisted that he was given some tablets by Giant and after 10 minutes he could not see, he saw darkness only.  He could hear the late Robert’s instructions and he followed them.  He admitted that he led the people to the recovery of the deceased’s head and the weapons used to decapitate the head by Robert. He further explained that after Robert killed the deceased and the effects of the tablets subsided, he returned to his parents’ homestead to report what Giant had done.

[33] He was cross-examined extensively.  The first issue was the blood on his clothes.  He admitted that his clothes were blood stained but explained that he had slaughtered two chickens that morning.  When he realized what transpired the previous night, he decided to report to his parents.  He did not change his clothes. So the blood on his clothes was chicken blood.

[34] He could not reconcile the fact that he was drugged yet he could recall everything that happened.  He could recall that Robert carried the tools for use.  He recalled that he entered the room where the deceased slept to get some food. He left the room and on return he observed that Robert had killed the deceased.  He did not hear any scream nor a word from the deceased.  He carried the bag with the head on Robert’s instructions. He could not defy Giant’s orders.

[35] On the weapons used he said they belonged to Robert. Robert threw them into a disused toilet and hid the satchel with the head.  When asked how dark it was, he said it was dark there was no light and he stood by the road while Robert hid the items.

[36] He said he was assaulted by the villagers at the homestead. He insisted that the witnesses did not properly hear his responses. He did not confess but explained that Robert had killed the deceased. Asked how he knew where the head was hidden if this was all about Robert, he could not explain. He simply said after Robert hid the head and the weapons, he went to sleep.

[37] The defence then closed its case, no other witnesses were called.

Closing Submissions

The State’s submissions

[38] The state failed to file the closing submissions as per undertaking.  The state undertook to file the closing submissions on or before the 20th of March 2025 but without any explanation it filed the closing submissions on the 28th of March 2025.

[39] The state urged the court to accept its witnesses’ evidence as credible. It was alive to the fact that there was no direct evidence in this case. It opined that the circumstantial evidence before the court proved beyond a reasonable doubt that the accused committed the offence.

[40] After analyzing the evidence, the state urged the court to find the accused guilty of murder with actual intention.  It opined that the accused’s defence of involuntary intoxication is not applicable.  On the authority of State vs Jeffrey HB 12/18 the state submitted that voluntary intoxication can only be a complete defence where the accused was intoxicated to such an extent that his mental faculties were affected.   In this case the accused had planned to commit the offence.  Shadreck testified that accused’s phone that he shared with his mother had messages which showed the plan to execute the murder and why it was done. This was a ritual murder.

The Defence’s Submissions

[41] The brief submissions just zeroed in on four issues.  Firstly, that Shadreck was not a credible witness.  There was established evidence that the accused was assaulted and then made indications.  Further that there is no direct evidence. The state failed to establish facts upon which inferences can be drawn.  The court was referred to the case of State vs Mhunza HH 303/23 for authority that there must be proved facts before inferences can be drawn.

[42] It was further submitted that the State could not disprove that accused was involuntarily intoxicated.  It could not disprove that it is Robert who beheaded the deceased, therefore his version must be accepted. There was no proof that the blood on his clothes was human blood.  A fortiori that it was the deceased’s blood. That the accused returned to the scene of crime shows that he was innocent. The conduct is not synonymous with a guilty mind.  The defence relied on the case of S v Sibanda 1997 (1) ZLR 258 on this proposition that an inference can be drawn from an accused’s conduct before or after the commission of the offence.

[43] In short, the court was urged to find that the accused was involuntarily intoxicated and therefore not liable under s258 of the Criminal Code. He must be found not guilty and acquitted.

Issues for Determination

[44] The following issues fall for determination

Whether the state proved that the accused committed murder.

Whether the accused was involuntarily intoxicated.

The law

[45] The State must prove its case beyond a reasonable doubt that the accused was both the factual and legal cause of the deceased’s death. There must be evidence of acts or an omission by the accused that is directly linked to the deceased’s death. In addition, there must be evidence of a subjective intention to cause death either actual or constructive intention as defined in section 47 (1) of the Criminal Code.

[46] Part 1V (Section 219-225) of the Criminal Code deals with the defence of intoxication.  As properly stated in the case of State vs Sithole HB 12/18 the defence is elusive.  In terms of s220 of the Criminal Code involuntary intoxication is a complete defence in specific intention crimes where the accused was involuntarily intoxicated and was so intoxicated such that he or she lacked the attendant intention, knowledge or realization to commit the offence.  Where the intoxication does not interfere with the ability to formulate an intention, then intoxication whether voluntary or involuntary is inapplicable in terms of s221 of the Criminal Code.

[47] In murder cases the test for intention is subjective. Thus, the state must establish beyond a reasonable doubt that the accused though involuntarily intoxicated he was able to formulate an intention.  Scientific evidence would be conclusive in such circumstances.  Besides that, a court can draw inferences from the circumstances surrounding the commission of the offence. To that extent, the accused’s conduct before, during and after the commission of the offence is indispensable in the assessment of evidence.

Factual and Legal Analysis

[48] The following is common cause;

The deceased did not die of natural causes; she was beheaded in cold blood.

The accused was present when the offence was committed.

The accused led to the recovery of the deceased’s head and the weapons used to behead the deceased.

[49] It is disheartening that this is yet another case compromised by lack of forensics results.  The heinous murder committed in 2017 which left villagers shell shocked could not be timeously prosecuted until seven years later. The co-accused Robert died pending trial. Although not specifically stated, it is apparent that the delays in prosecuting the matter was occasioned by the forensic results that never came.  We were told the weapons with blood; the clothes soaked in blood were all sent for examination.  Until the trial date 7 years later there were no results.

[50] The results were pertinent to resolve some critical issues.  Firstly, whether the blood on the accused’s clothes was human blood and specifically whether it was the deceased’s blood.  Secondly whether the weapons had the accused’s finger prints since he said Robert killed the deceased and the weapons belonged to Robert.

[51] The exhibits did were not returned. The State could not produce the weapons or the clothes. Fortunately, the accused consented to the production of the deceased’s pictures but denied any association with the exhibits.

[52] We were not told the reason why the forensics department could not play its part. The Court can only recommend that the department be fully capacitated to seamlessly discharge its mandate. In this age of digitalization and advanced scientific inventions our criminal justice system must step up, be capacitated to utilize this conclusive area of investigation. If properly resourced some cases may be resolved timeously and conclusively. That as it may be, the unavailability of the results does not completely incapacitate this Court from making its decision.

[53] We accept that the accused was assaulted by the people at his parents’ homestead.  The state witnesses contradicted each other on this aspect.  Our finding is that Shadreck, the retired soldier was conscious of admissible evidence, he denied completely that the accused was assaulted.  David’s evidence was more credible that the people assaulted the accused and tied him with a rope. His confession to the people maybe inadmissible as it was preceded by assaults but his pointing to the head and the weapons used in killing the deceased is admissible in terms of s258 of the CPEA which provides,

258 Admissibility of facts discovered by means of inadmissible confession

(1) It shall be lawful to admit evidence of any fact otherwise admissible in evidence, notwithstanding that such fact has been discovered and come to the knowledge of the witness who gives evidence respecting it only in consequence of information given by the person under trial in any confession or statement which by law is not admissible in evidence against him on such trial, and notwithstanding that the fact has been discovered and come to the knowledge of the witness against the wish or will of the accused.

(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him on such trial.’

[54] That section admits into evidence anything that was pointed out by any person under trial even though the pointing out was a result of an inadmissible confession. In S v Ackim HH143/18 the court declined to admit into evidence the accused’s confession but accepted the exhibits that were recovered at the accused’s pointing.

[55] The probative value of the blood-stained clothes is very low. There was no evidence that was human blood and most crucially that it was the deceased’s blood. However, we do not lose sight of the fact that the accused retired to bed in the early hours of that day. He carried the satchel that had the deceased’s head. We accept the witnesses’ evidence that the satchel dripped with blood. If the satchel dripped with blood the probabilities are that the blood also flowed on to the accused’s clothes.

[56] The accused’s explanation is farfetched to say the least. He said he slaughtered two chickens that morning, it is the blood of chickens that spoiled his clothes. It is then that he decided to report to his parents Robert’s conduct. It is incomprehensible that he could have slept, woken up and decided on his day’s chores when he was aware of this death.

[57] We accept Champion’s evidence in its totality. He spoke with clarity. There was no hint to embellish evidence nor to downplay the accused’s conduct on the day. As already stated, he was simply a troubled father. As a father to the accused he had no reason to misrepresent the facts. Although the late Robert was not before the Court one wonders why he could not give Champion the Police contact details. As a local business man there is no way he could not have the details.

[58] We also accept David and Shadreck’s evidence. They were senior members of the community. Although Shadreck may have exaggerated some evidence for instance that the accused was not assaulted we do not find that a meaningful dent to his evidence as a whole.

Whether the accused was involuntarily intoxicated

[59] Section 221 of the Criminal Code would have given the accused some reprieve unfortunately it does not. This is so because even if a person was involuntarily intoxicated then it must be shown that he/she did not fully appreciate what he was doing. The section provides,

‘221 Intoxication no defence to crimes committed with requisite state of mind

(1) If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility⎯

(a) was voluntarily or involuntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime; but

(b) the effect of the intoxication was not such that he or she lacked the requisite intention, knowledge or realisation;

such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.’

[60] We reject that the accused was involuntarily intoxicated and lacked the requisite intention. This is an accused person who was demonstrably in control of all his mental faculties.  He had the presence of mind throughout the commission of the offence. He did not specifically tell us what exactly was given to him by Robert.

[61] Firstly, his defence outline was brief, he said he was involuntarily intoxicated by Robert. No further details were given.  In his evidence in chief, he said he was given flue tablets, the number of tablets were not disclosed.  Under cross-examination he said he was given tablets and some liquid.  Even if we accept that he may not have known the effects of the ‘medication’ his conduct thereafter does not show that he was intoxicated.

[62] The accused tried to draw a picture that he was drugged and did not fully appreciate what he was doing.  However, his evidence showed that he was in full control of his mental faculties. His mind registered everything that transpired albeit at times with selective recollection. That cannot be accepted. The “drugged” accused could walk more than 5 km to his homestead.  He did not tell us that he was stumbling or was assisted to walk by Robert. He said he could only see darkness, so how did he walk 5 km.  How did he identify the kitchen where the deceased slept?  Even if he says Robert led him, he said when they got to the kitchen, he left Robert and went outside to check on his wife.  Now he was alone how did he walk; he could reason to check on his wife which means his mental capabilities were fully functional. In fact, we doubt that this happened. His father did not tell us about the accused’s wife.

[63] The accused literally took the Court for granted. He even said he could hear the late Robert’s instructions and execute them but he could not resist. We wonder what he really meant. Could it be that he was incapacitated to only do what Robert directed or that he could not reason. Whatever the interpretation the bottom line is that his conduct did not manifest loss of his mental faculties.

[64] The accused carried the satchel fully aware that it had his sister’s head around 12 midnight. He walked back to the shops.  Obviously, the head was dripping with blood that is why the satchel was bloody.  The chances are that some blood naturally flowed on to his clothes.  His mind registered where the weapons were hidden and the head. He decided to go to his room/house to sleep. Any reasonable person can surely see through this chicanery.  How can a person conduct himself likewise and yet claim he was intoxicated?  We reject this defence.  There was no intoxication. If he took anything to dull his mind it was for Dutch courage.

[65] The accused could not answer why Robert would show him where he hid the head and the weapons if they had nothing to do with him. The accused may have hidden the head pending payment.  He said he did not know why Robert wanted the deceased’s head.  What exercised our minds is why did the accused get involved in the first place.  He is the one who led Robert to the room where the deceased slept.  It is unfortunate that the weapons were not before the court for Champion to verify if he knew any of the weapons.

[66] The events that unfolded after that eminently demonstrate the accused’s alert mind when all this happened.  He went to sleep.  We do not know if he had a peaceful night. However, he woke up to his normal chores.  He ran a canteen.  He slaughtered two chickens, so he said. While he did so he remembered what giant had done, he decided to run back home to tell his parents.  Surely this rosy story that the accused tried to tell the court is unbelievable.

[67] The deceased was his sister.  She was killed the previous night while he “watched.”    He went to sleep and did nothing about it.  We reject the selective recollection by his mind.  We also reject that his conduct to return home and report is synonymous with an innocent mind.  There is a high possibility that a guilty conscience that took him home, that led him to confess and led him to make indications resulting in the recoveries.

[68] From the foregoing we conclude that the accused was not intoxicated.  The defence is not available to him.

Whether the accused is liable

[69] The next issue is whether the accused committed the offence. Did the State prove its case beyond a reasonable doubt. Did the accused behead his sister or it was Robert?  It is unfortunate that valuable evidence could not be secured through the forensics department.  There was no link that accused’s clothes were stained by the deceased’s blood.

[70] What was proved is that the accused was in the room where the deceased was killed.  He led Robert to the room. He carried the bag with the head.  The head and the weapons were hidden in his presence.  The accused went to sleep.  At no time did the accused dissociate himself with the crime although there is a strong suspicion that the accused was Robert’s foot soldier to behead the deceased for ritual purposes.  Shadreck referred to cell phone communication between the accused and Giant. The messages were not placed before the court.  It was inadmissible hearsay evidence.

[71] In the absence of evidence contradicting the accused’s version we can only accept that accused was with Robert when the offence was committed. There was no evidence that he beheaded the deceased. That finding is not the end of the matter. The accused by his conduct associated himself with Robert’s conduct. What remained unexplained throughout the trial is why he led Robert to his parents’ homestead and specifically to the deceased’s room.

[72] After considering the different pieces of evidence we are obliged to consider all the evidence in its totality. At the end of the day the accused’s liability is based on the proved facts and the probabilities. See Gumbura v The State SC78/14.

[73] We have no doubt that the accused associated himself with Robert in the commission of the offence. He is liable in terms of s196 A which provides,

196A Liability of co-perpetrators

(1) If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

(2) The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they—

(a) were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

(b) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

(c) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.

(3) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.’

[74] In Madzokere v The State SC71/21 a case where spontaneous violence erupted from a crowd resulting in the death of a police officer. The Court analysed the applicability of the s196A and noted that to ascribe a common intention to a crowd requires more than just assembling. There must be evidence of a common intention to commit the offence or a real risk that the main perpetrator would commit the offence.

[75] In this case there is ample evidence that the accused person was complicit in the murder of the deceased. Firstly, he accompanied Robert to his parents’ residence and particularly to the room where the deceased was sleeping. Robert would not have known where the deceased was sleeping but for the accused’s leading.

[76] Secondly, although he did not come out clean, the accused indicated that he was given instructions and followed them. We do not know what it was because these instructions were given from the Shops where they were. After the decapitation of the deceased, the accused carried the satchel bag with the deceased’s head. The satchel was then hidden in a disused toilet. Even if the accused said it was Robert who hid the satchel, the probabilities are that Robert was at ease to hide the bag in the presence of the accused since he knew that they were together in this with the accused. There is no way he could have hidden the bag in the presence of the accused if the did not trust the accused.

[77] The proved facts admit of no other inference except that the accused was part of this grand plan contrary to the defence submission that there are no proved facts in this case. In our view, the accused was involved or associated himself in conduct that was preparatory to the commission of the crime, he was not only at the vicinity of the crime but directed the main perpetrator to the vicinity. His conduct during the commission of the offence admits of no conclusion except that he fully associated with Robert’s conduct.

[78] There is strong circumstantial evidence in this case to support a conviction. The probabilities are that the accused and Robert proceeded to deceased’s place of residence with an intention to kill her.

[79] Accordingly, the accused is found guilty of murder with actual intention.

SENTENCE

[80] This family tragedy will continue to haunt the accused’s family and the villagers in his community for some time. The accused killed his own sister in cold blood, in their kitchen hut for no apparent reason. She was fast asleep; these are moments of high vulnerability because one can neither escape or resist. It was in the middle of the night. He knew very well that his father was asleep in his bedroom when he committed the offence. By the end of trial, the accused still did not come clean why he killed his sister. The reason remains speculative that he was hired by the late Robert to kill the deceased for ritual purposes. Sadly, his sister’s head for a trophy of US$4 000.00.

[81] Both the defence and the State agreed that the offence was committed in aggravating circumstances. There is no doubt that the accused and his accomplice the late Robert carefully planned how to execute their evil intentions. The murder was premeditated. The deceased’s head was neatly slit off. We were not told at what stage the head was cut off. Whether it was before or after her death. The bottom line is that there was mutilation of the deceased’s body. The Cambridge online dictionary defines mutilation as,

“an act of damaging something severely especially by violently removing a part”.

[82] This is exactly what transpired in this case, the accused removed the head and left the body in the kitchen.

[83] In coming to an appropriate sentence, the Court must always consider the triad referred in S v Zinn 1969 (2) SA 537 (A) at 540G-H that is the accused, the offence and the interests of the justice represented by the public. The triad must be balanced to achieve the objectives of sentencing. The sentence should fit the criminal as well as the crime, be fair to the society and be blended with a measure of mercy according to the circumstances.

[84] The Sentencing Guidelines have listed the objectives that courts must endeavor to achieve. These include reformation/rehabilitation, retribution, deterrence, protection /prevention and restitution. In serious offences like murder, depending on the circumstances of the case retribution and deterrence take precedence. However, the accused must not be sacrificed at the altar of deterrence. This is because deterrence is directed to like-minded persons to discourage them from committing offences.

[85] We consider the factors.

The offence

[86] The offence that the accused has been convicted of is serious. Life is a gift once taken it cannot be replaced. The right to life upon which the rest of human rights sit on is protected in our Constitution . For where there is no life there can be no other right that can be demanded by the person. No one has a right to deprive another of this right. Even Courts cannot impose the death penalty as it has been abolished in our Statute books . Courts must therefore jealously guard this right to life.

[87] Where the offence is committed in aggravating circumstances the court can impose a minimum sentence of 20 years imprisonment and a maximum sentence of life imprisonment. The range of sentences provided by the legislature shows the serious view taken against the offence.

[88] The circumstances under which the murder was committed induced a sense of shock and revulsion in the community where the accused and the deceased lived. That blood is thicker than water was rendered hollow, meaningless and trifling by the accused. His ties to his sister did not mean anything to him. He killed his own kin and kith probably out of greed.

The accused

[89] The accused was aged 20 years at the time the offence was committed. He is now 28 years old. He is a first offender. Youthfulness is considered as mitigatory. The rationale behind this recognition is that young offenders are predisposed to impulsive behaviour or a diminished capacity to appreciate the wrongfulness of their actions. Research has shown that the human brain continues to develop well into the mid-20s. As such during this period brain regions are not fully developed which impairs their capacity to reason, delay gratification, impulse control; and capacity to make autonomous decisions.See also S v Mandaza HH 257/24.

[90] He was in custody for 6 years awaiting trial. There was an inordinate delay in trying the accused which was not of his making. He was on remand in custody for about four years, then removed from remand. He was then indicted again around 2023 which culminated in this trial. Pré-trial incarceration is weighty mitigation and it must be considered. Pré- trial incarceration is deprivation of one’s liberty before conviction and it is onerous.

[91] At 20 years we were told he was already married with four minor children. He was the sole bread winner. The accused was cooperative with the police and led to the recovery of the deceased’s head and the weapons used to commit the offence.

[92] What is probability highly mitigatory is his recent condition. The accused lived 28 years without a disability and is now blind. He must learn to live a new life, being blind and in prison presents a double challenge. The difficulties that people with disabilities face in society are magnified in prison and research has shown that, ‘given the nature of the closed and restricted environment and violence resulting from overcrowding, lack of proper prisoner differentiation and supervision. Prison overcrowding accelerates the disabling process, with the neglect, psychological stress and lack of adequate medical care characteristic of overcrowded prisons”

[93] In view of his disability, we requested the Officer in Charge Prisons at Chinhoyi to appraise the Court on the effect of the disability on the accused to serve a custodial sentence. The report listed his lived reality while in prison. The accused’s life literally depends on the goodwill of other inmates. He needs assistance to access the bathroom, his food and for anything he needs to do. He has no white stick to assist him to walk. In short Prisons does not have special facilities for prisoners living with disability.

[94] Both the State and the defence addressed the court on the effect of disability on sentence. Both Counsel seem to agree that disability is mitigatory particularly in less serious offences. In serious offences it has a negligible effect since incarceration is the only appropriate sentence. We do not intend to overburden this judgment with an elaborate discourse on the rights of people living with disabilities in prisons. We can only comment that at international level, regional and national level the legal framework recognizes the rights of people living with disabilities and place the responsibility on Government to make sure that they enjoy their rights just like any other person. This entails a positive willpower to provide resources and facilities to enable them to enjoy their rights. By parity of reasoning this also applies to prisons.

The Interests of the public

[95] The deceased’s immediate family, his immediate community and indeed the community at large represent the interests of the public and justice. His father gave evidence before the court his attitude was nonchalant; he appeared undisturbed by the accused’s incarceration or even his new condition. When the Court appraised him of the disability he did not say much but to take note. Even after giving evidence, he asked if he was getting his transport allowance he wanted to leave. Even after the court asked if he did not want to know his son’s fate he did not care much he simply wanted to go back. He has resigned to fate.

[96] If the father’s is attitude is anything to go by then it was apparent that to him the accused should simply face the wrath of law. He had no good word say on behalf of his son the accused.  Certainly, the interest of the public lies in having the accused punished for causing the death of another particularly his own sister. Family is where security, love and peace must be found. It is within this central unit of society that the murder took place.

The Appropriate Penalty

[97] Having regard to the triad Mr Antonio urged the court to depart from the minimum mandatory sentence and impose a sentence less than 20 years. We were referred to the cases of S v Phiri HH 581/16, S v Togara HH 13/17, S v Kurangana HH 267/17 and S v Chitsa HCC 33/24 where sentences of less than 20 years were imposed. The difficulty in following the cases is that the murders were not committed in aggravating circumstances.

[98] It occurred to the court that Mr Antonio may not have considered seriously whether a court can impose a sentence less than the minimum sentence. It is our view that the use of word shall in s47 (2) means the provision is mandatory and not directory.

[99] The State opted to stick to the letter of the book. On the strength of the finding that the offence was committed in aggravating circumstances we were urged to impose a sentence of life imprisonment. It considered that the offence was committed for ritual purposes, reference was made to S v Shamba & Anor HH 419/23. Further that in murder cases a sentence should be more for retribution and deterrence as opposed to rehabilitative on the authority of S v Ncube & Ors HHC 14/23.

[100] This is a case where a life imprisonment sentence would be appropriate. It has all the factors of one of the worst-case scenarios of murder. There was intimation that this murder was a ritual murder. It seems the accused was the assassin but not the end user of the body part taken. The 20-year-old accused then, fell hook line and sinker to the alleged promise of US$4000.00. He was blinded by the money, and sold his sister’s head for it. Unfortunately, the real price tag for his efforts is a custodial sentence. We also do not lose sight of the fact that justice must be tempered with mercy. He is young and can still live a rehabilitated life after prison.

[101] In view of the long pre-trial incarceration, his age and his disability which will magnify his difficulties in prison justice requires that a prison term other than life imprisonment be imposed. As properly submitted for the accused, these circumstances are even perilous in that he must learn how to live with blindness in prison. That is a tall order. The presence of disability does not automatically lead to a reduced sentence. While the Court can treat disability as mitigatory, this factor must be considered in light of other factors like the seriousness of the offence, the interest of justice and the need for both deterrence and retribution.

[102] As stated, there are persuasive mitigatory factors but the court is humstrung it cannot impose a sentence below 20 years. It is also in the public interest that a deterrent sentence be imposed.

[103] The accused’s conduct has obviously created a multi layered stigmatization. He will live with the stigma that he killed his sister; his parents will live with the stigma and trauma that their children killed each other. We wonder if the kitchen where deceased was butchered is still being used. It is an indelible reminder of the accused’s criminality.

[104] From the above the accused is sentenced as follows:

20 years imprisonment.

National Prosecuting Authority, the State’s Legal Practitioners

Antonio & Associates, the accused’s Legal Practitioners