THE State V Tafadzwa Harurovi

### Preamble
1
HCC 15/25
HCCR 1571/24
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THE STATE

Versus

TAFADZWA HARUROVI

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 10 March 2025

Assessors:	1. Mr Mashavave

2. Mrs Mateva

Sentencing Judgment

G. T. Dhamusi, for the State

K. Maguvude, for the accused

MUZOFA J: [1] The accused was convicted of murder in contravention of s47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused and the deceased were once married and had separated. From their union they had one child. The deceased was the custodian parent of the child. The offence was committed during one of the accused’s visits to the deceased to give her provisions for the upkeep of the child. This is what the accused told the court.

[2] The brief facts are largely common cause. On the 24th of May 2024 the accused visited the deceased Shantel Nhamoinesu to deliver some provisions for their child.

[3] According to the accused, which fact was not controverted by the State the two had an altercation. He gave two reasons why they had an altercation, first in his defence outline he said he suspected infidelity on the part of the deceased. However, in his evidence in chief he said the deceased had disclosed that the child was not his and that she was HIV positive. There were chances that he had been infected.

[4] The accused took his lies further he simply forgot that lies have short legs. He indicated that he was then tested for HIV and was positive. Despite that, he did not take medication. He had not even disclosed his condition when he was admitted at Prison. The court ordered that he be tested pending sentence so that proper procedures maybe followed based on the results.

[5] On the next date of hearing, the results showed that he was HIV negative dispelling his initial lies. He could not say a word more on the issue.

[6] That as it maybe, in our judgment we found that the defence of provocation is not applicable in this case. Whether the accused was advised of the child’s paternity, the HIV status he did not act at the spur of the moment. The accused in his evidence in chief did not insist on the infidelity issue but the later version.

The Law

[7] The starting point is whether the offence was committed in aggravating circumstances. A finding that the offence was committed in aggravating circumstances means the Court has no choice but to impose a minimum sentence of 20 years in terms of s47 (4) (a) of the Criminal Law Code. The legislative view on such cases is clear, it views murder committed in aggravating circumstances as a very serious offence. Subsection (2) and (3) of the same section lists some of the aggravating factors which have been adopted and incorporated in the Sentencing Guidelines. The factors are not exhaustive each case may present distinct and different aggravating factors.

[8] The cardinal principle in sentencing is to balance the triad, which was enunciated in the Zinn case. The sentence must fit the offender, the crime and be fair to society, it should be blended with a measure of mercy which is a hallmark of civilised democracy.

[9] Sentencing has been considered primarily as a deterrence and retributive at most. In murder cases retribution and deterrence are critical to punish the offender for the harm caused. The sentence also serves as a message to deter would be offenders. The Courts must be seen to play its role to deter commission of such serious offences. Life is sacrosanct, all other rights derive from this one right.

Mitigation and Aggravating Circumstances

[10] The accused did not lead evidence in mitigation of sentence. Ms Maguvude presented factors to be taken into account in assessing sentence. Some factors relevant in mitigation were led during the trial and the court shall refer to them.

[11] The State on the other hand, led evidence from the deceased’s mother Virginia and also pointed to aggravating circumstances to warrant life imprisonment.

The Offender

[12] The accused is 32 years old. He sired one child with the deceased. Virginia the deceased’s mother gave evidence and indicated that the deceased had eloped to the accused when she was in form 2 aged 15 years. This means the accused married or co-habited with the deceased when she was a child. The Constitutional Court of Zimbabwe has declared child marriages unconstitutional as far back as 2016 in the landmark case of Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs N.O and Others . It is an offence to marry a girl under the age of 18 years. Similarly, even carnal knowledge of a girl under 18 years is an offence.

[13] The effects of early marriages include both loss of opportunity to develop, psychological and health effects. Virginia’s mother identified some of the effects. She said the accused “took” her child when she was young, she could not continue with her education. Even after she gave birth to their child, Virginia had tried to persuade the deceased to return home and continue with her education. She would not change her mind. This means she could not further her education because of the marriage.

[14] The accused had not even paid lobola. He had sent a token of US$30.00 to let her family know that he was staying with the deceased. She also said the accused was abusive and at intervals she would provide basic food for his family he could not afford or was unwilling to provide for his family. The accused did not dispute all this.

[15] The accused asked for forgiveness through his legal representative who addressed the court in mitigation. Throughout his case, from the defence outline, the evidence in chief and cross examination he did not ask for forgiveness. According to Virginia, his family did not apologise neither did they assist during the funeral. The accused was a son in law, his family should have known better what to do. They did not.

[16] The question is whether asking for forgiveness is showing remorse? It is not. Remorse is an internal feeling of guilt, regret and sorrow, realising the wrong done. On the other hand, to ask for forgiveness is a request to be pardoned for wrong doing. The sentiments in S v Matyityi are quite instructive on the role of remorse in mitigation and how it can be assessed. The court had this to say;

“There is, moreover, a chasm between remorse and regret. Many accused persons might well regret their conduct but that does not without more translate to genuine remorse. Remorse is a knowing pain of conscience for the plight of another. Thus, genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not feeling sorry for himself or herself at having been caught, is a factual question. It is the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the pertinence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happened, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia, what motivated the accused to commit the deed. What has since provoked his or her change of heart, and whether he or she does indeed have a true appreciation of the consequences of those actions…..” underlining for emphasis.

[17] The accused must take the court into his confidence, it is very critical. The accused must assist the court to understand his thinking processes after the commission of the offence. For instance, when he realised his wrong what did he do? In this case the accused escaped from the scene of crime. He did not assist the deceased.

[18] He told the court that he stopped stabbing the deceased when he realised that he could kill her. After that realisation what did he do to save the deceased and secure medical assistance or any other help? Nothing. He ran away. There was no remorse immediately after committing the offence. The heartless attitude is clear proof of his lack of remorse.

[19] After the death of the deceased, although he was in custody, he could have done something to assist during the funeral or to offer some compensation. Compensation may not bring the dead to life but it is a strong factor that shows remorse.

[20] The accused married the deceased at a tender age and exposed her to the vagaries of adult married life at 15 years. Five years down her married life, he kills her. He was also abusive. What bothers us is that the accused does not take full responsibility of his actions. He said I had no intention to kill her, I killed her because of what she told me. He shifts the blame to the deceased.

[21] The Court’s view is that, he asked for forgiveness because he has been convicted. Otherwise as far as he is concerned the deceased deserved what she got because of her conduct.

[22] So before the Court is a middle-aged male adult of 32 years, a first offender who killed his young wife after an altercation. He is not remorseful.

The Nature of the Offence

[23] The accused has been convicted of a serious offence. The circumstances surrounding the killing of the deceased is gruesome.

[24] The accused followed, in fact stalked her from her homestead, to the garden until an opportune time presented itself to be alone with her. The accused had already armed himself with a knife to use on the deceased. This was not a knife that he picked nearby or was simply carrying. He specifically armed himself with the knife to stab the deceased. This is what he told the court.

[25] When they were alone, along the road to her homestead the accused stabbed the deceased using the knife, a kitchen knife 27cm long. We had sight of the knife and observed that it was sharp on one edge. We appreciate the detailed post mortem report. The Doctor took his/her time to describe the stab wounds which were 12 in number.

[26] The deceased was stabbed all over the body, the face, some on the neck perforating the thorax, some on the breast, the navel to the appendix. The neck was stabbed numerous times. According to Tererai at one point the deceased was stabbed while kneeling clutching at the accused’s shirt. Such atrocity on a defenceless woman must be condemned. This is domestic violence and that the deceased was killed by the father of her child is highly aggravating.

[27] The accused acted with a purpose, premeditation, and sustained control. He purposefully armed himself with a knife, a lethal weapon, he exercised self-control, not to attack in the presence of Tererai the deceased’s friend so that there is no disturbance in the execution of his nefarious act. In a case with almost similar facts in S v Dikana the court imposed a life imprisonment. The accused in that case was infuriated and felt undermined when he suspected that his girlfriend had a love affair with another man. He decided, to get a bottle, filled it with paraffin and told a witness his intention to burn the two. He then set the shack where the girlfriend and the boyfriend were in, killing them.

[28] What is important in that case which resonates with the facts of this case is that, the court found, as we did that a period of three hours had lapsed between the perceived provocation and the murder. The intention to murder was formulated at least two hours before the commission of the offence in that case. The court concluded that provocation cannot be a valid defence in such circumstances.

[29] In this case the intention to kill was formulated more than three hours before the commission of the offence. The accused walked some distance trailing the deceased until he got a suitable time to attack.

[30] A life was lost. A child has been orphaned. The child is almost a double orphan, the mother having lost her life in the hands of her husband and the father in Prison.

[31] Murder is a serious offence, in this case we certainly agree with the State, it was committed in aggravating circumstances. There is premeditation, which can be derived from the number of stab wounds. The accused targeted the neck which is a vulnerable part of the body. That he killed the mother of his child is aggravating, their relationship could only be preserved by him unfortunately he destroyed it.

[32] Although Ms Maguvude indicated that the offence was not committed in aggravating circumstances, he could not substantiate the submission with facts. She was correct. There was nothing from the facts to motivate the submission.

[33] The defence urged the court to impose 20 years imprisonment in line with the case of S v Mukunguma. In that case the deceased killed his wife. In that case the accused and the deceased fought which is different from this case. The deceased was a defenceless woman who was battered to death.

[34] The State referred us to a useful case, Nyoni v S for guidance. In that case the accused struck his ex-girlfriend who snubbed his advances for reconciliation. He was found guilty of murder with actual intention and sentenced to death. The Supreme Court dismissed the appeal against sentence. Obviously, the Court cannot impose the death penalty even if it still exists under s47 (4) of the Criminal Code since it has been outlawed. What remains is for the Criminal Code to be aligned accordingly. The maximum penalty therefore is life imprisonment.

[35] A maximum penalty is a preserve of the worst-case scenarios, like a murder during a robbery or where the victim is raped. However, each case depends on its circumstances. The accused has been in custody for almost nine months which is a reasonable period. The accused is still young and emotions took the better part of him. As already stated, justice must be tampered with mercy.

Disposition

[36] This is a domestic violence case, where the deceased lost her life in the hands of her partner who should be a source of comfort and security. The accused married the deceased at a tender age of 15 years. He lived with her for 5 years and at 20 years she was killed. They had an abusive relationship. In fact, the age difference was 12 years which could have contributed to the abuse. The offence was committed in aggravating circumstances. The number of stab wounds inflicted on the deceased tells it all. The accused’s conduct after committing the offence was reprehensible considering that the deceased was the mother of his child. The following sentence is imposed;

23 years imprisonment.

National Prosecuting Authority, the State’s Legal Practitioners

Samundombe & Partners, the accused’s pro deo Legal Practitioners