THE State V Tinotenda Zengeni

### Preamble
1
HCC
80/24
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THE STATE
versus

TINOTENDA ZENGENI

IN THE HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 15 October 2024

Assessors: Dr. Mashavave 
	      Mr. Mutayiwa

Criminal Trial

G. T. Dhamusi, for the State
M. M. James, for the Accused

BACHI MZAWAZI J:

Preliminary:

The accused person pleaded not guilty to the offence of murder in contravention of s47 (1) of the Criminal Law Code. He raised two defences, provocation and self- defence with voluntary intoxication as a mitigatory factor. It is alleged that he axed to death his friend and relative, Washington Kachepa, on the night of 25th of March, 2024 after a beer drink at Bluegrass Village, Kadoma.

Background facts

The common cause facts are that the accused and the deceased were not only related but companions who on the day in question were drinking together. An altercation is said to have arose after the deceased accused the accused person of being a cattle thief. The basis for such allegations or why the accused took offence if they were not true is not clear. No one else was present at the time of such utterances or any others except the two protagonists. The first State witness, Themba Khumalo only walked in the midst of the scuffle and restrained the two. He was not privy to what transpired prior to his arrival. In the absence of the deceased’s own version of the events of that day, it is the accused’s story on that aspect that carries the day.

From the first State witness’s unchallenged evidence, the confrontation ended with his mediation and all the three walked homeward in rapport. The witness and the accused parted ways with the deceased a few metres from the accused’s homestead. However, upon accused’s arrival at his residence, he saw the accused already standing in his compound holding a wooden axe handle. Accused then walked straight into their house and retrieved an axe after an exchange of few words with the deceased. Upon seeing the axe the deceased retreated and took to his heels with the accused in hot pursuit. Accused caught up with the deceased about 400 metres away from his house and axed him three times on the head and back shoulder. The deceased staggered to a nearby home where the neighbor alerted others. In the meantime, after the deadly assault, the accused made his way back to his residence and was met half way from the scene of the crime by the first witness.

The first witness who had been alerted by the accused’s mother of the chase with an axe had followed the accused’s trail. He took the bloodied axe after the accused had informed him that he had finished all the sports with the deceased. The deceased later succumbed to his injuries at a major transferal   hospital leading to the arrest of the accused person and these charges.

The Defence Case

It is the accused’s defence that he was provoked both by the insults of being a cattle rustler and threats of being burnt to death in his home whilst sleeping by the deceased. The provocation was further perpetuated by the presence of the deceased at his homestead especially after the threats. Contrary to the first witness’s evidence, the accused attested that the cattle thief issue did not end at the bar but continued on their way home.  He admits attacking the deceased, but asserts that he was acting in self -defence, after being provoked, especially after finding the deceased waiting for him at his own home armed with a wooden axe handle. Of note, his defence outline and evidence in court was at variance with his confirmed and warned cautioned statement admitted into evidence.  The contradictions are material in that, in court he stated that the need to defend himself arose after the deceased stopped in the midst of the chase, confronted him and attacked him on the chest. He further, attested that he only struck the deceased once.

In contradistinction, the said extra curiae statement does not mention a retaliatory attack by the deceased on the accused. In his own words the accused mentioned that he attacked the deceased after catching up with him during the chase. The number of blows, where they were directed and the force he exerted are explicit in the said documentary evidence. The manner the murder was executed is consistent with the findings in the autopsy report which is also documentary evidence and an exhibit forming part of the record. In actual fact the wounds revealed by the post mortem report as submitted by Mr. Dhamusi, for the State, are in tandem with blows inflicted whilst the victim was being chased or had fallen face down. We agree with the State’s observations in their closing submissions in this regard.

Like what has been alluded to above, the accused’s defence outline and the defence counsel’s submissions suggest that the necessity of the putative self -defence came to when he arrived home and seeing his nemesis of the day in contrast to the averment that it was in response to the wooden axe handle attack. What is clear and not contested from the accused’s evidence and the State case is that the accused and the deceased had been drinking beer and were under some influence of the intoxicating liquor.

The State Case

Evidence in support of the State case was led viva voce from two witnesses, Themba Khumalo and Prisca David. The rest of the State witnesses’ evidence was admitted uncontested.  A post mortem report detailing the injuries sustained and the cause of death, as well as, the murder weapon, alongside a confirmed and warned cautioned statement from the accused were also produced by consent.

The facts leading to the murder are not in contestation. The two State witnesses called by the State, Temba Khumalo, already referred to and Prisca David, the accused’s biological mother all rendition the summary of the State case. Temba Khumalo chronicled what happened from the time he pacified the initial fight to the time he was alerted of the murderous chase. Though, in court he introduced that, he heard the accused denouncing the presence of the deceased the moment he split with and left accused at his house, in his written statement of record he never said the same. Again in court he mentioned that he retrieved a wooden axe handle at the point he met the accused and redeemed the axe. The indications he made to the police show that he met accused at point C whilst the scene of the offence is at point B. There is no indication that he even passed through point B on his way to where the deceased finally staggered to.

This in a way dents the evidence as to whether the deceased was armed in the first place. Particularly, when the axe, murder weapon, was produced as evidence and the wooden axe handle was not. There is no explanation as to why that piece of evidence if ever it was recovered was not handed over to the police or produced in court as evidence. Even though the second State witness who is an interested party also stated that she saw the wooden handle, a shadow of doubt is cast on the fact that she never left her bedroom as she spoke with the deceased through her closed window. She attested that it was dark and she was using a head torch light from within. The question is could she have discerned what the deceased had in his possession?

Doubtful as it may be, the accused’s version seems to be corroborated. Therefore, in the absence of the deceased’s own side of the story or any other independent’s witness’s testimony, it cannot safely be denied that the deceased had a wooden handle in his hands at the time he visited the accused’s dwellings.

The second State witness was to a certain extend credible in her evidence as to the visit made by the deceased enquiring of the whereabouts of the accused. Under cross examination she admitted that the deceased was just standing still when the accused arrived and proceeded to collect the axe. She further attested that the deceased was terrified when he saw the accused charging with an axe, leading to his retreat and fleeing. This witness admitted to having then alerted the neighboring community as she had been startled by the manner the accused gave chase after the deceased.

Despite the few inconsistencies in the two witnesses’s evidence, the crucial part of their testimony is credible. The documentary evidence produced illustrated that the accused did cause the death of the deceased in the manner alleged and with the weapon adduced. In the broader context what is to be considered, is whether or not the accused had the requisite intention to kill given the defences raised?

Issues

Whether or not the accused was provoked to the extent of losing self –control?

Whether or not the accused acted in self defence?

Whether or not the accused person is guilty of murder as charged?

Analysis of Facts and Evidence and the Law

Whether or not the accused was provoked to the extent of losing self –control?

What is provocation?

At most provocation is an act or conduct or words that riles or stirs negative reaction in the other person. It can stem from outright verbal insults, retorts, comments or deconstructive criticism. It can be physical in the form of physical assaults or demeanor that brings about some irrational behavior in the receiver or perceiver. Somehow, human beings have inherent mechanisms to cope with provocative situations. Some walk away, whilst others react by retaliation there and then or much later, in whatever manner they deem appropriate. Some take longer to react to provocation. They will bear a grudge, then like a seething volcano erupt at the slightest possible opportunity. However, different individuals react differently to provocation as amply extrapolated by MAVANGIRA JA in, Spencer Sithole v The State SC 14/24. See, S v Nangani 1982(1) ZLR 150 (S). S v Ncube –S-14 87.G. Feltoe “Criminal Policy: In Relation to the Defence of Provocation 1983-84 ZLRev at 140.

The law recognizes that due to the frailty and infallibility of human nature provocation can lead to the commission of crimes even homicide. However, it does not allow an unfettered carte blanche to the defence of provocation in specific intent crimes. The law recognizes the need for people to exercise self- restraint or self -control when faced with provocative scenarios.

In our jurisdiction provocation is a partial defence in murder. Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], provides:

“(1) If after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section 47, the person shall be guilty of murder.”

MWAYERA J, as she then was, qualifying the above section commented in Sv Kashiri HMT 13/18 as follows:

“It is apparent that provocation is not a complete defence. For provocation to qualify and succeed as a partial defence to a murder charge leading to a conviction of culpable homicide, certain requirements must be met. In cases decided in the past it has been shown that the provocation must have been so intense as to negate intention on the part or the accused or so intense as to induce complete loss of self-control on the part of the accused.”

See S v Mafusire 2010 (1) ZLR 417, S v Moses Saunyama HH 581/17 at 16 and S v Masina 2010 (2) ZLR 498.

BERE  J, as he then was, in the case of The State v Zvenyika Basera HH316/14, added that,

‘ In specific intent crimes, such as the crime of murder, the defence of provocation can, if properly established, act as a partial defence.”

See, A guide to the Criminal Law of Zimbabwe, 2nd Ed, by G. Feltoe.

In the Masina case as cited in Sv Kashiri above, it was held that for provocation to reduce murder to culpable homicide, it must be such as would lead the accused to act without intention, or with intention but having completely lost self-control, the provocation being sufficient to make a reasonable person in his position and circumstances lose self-control.

Evidently, in the present case, from the time the so-called threats and disparaging words were uttered to the time the accused arrived home, there was sufficient cooling off period.  The mere presence of the deceased at the accused’s residence may have been provocative given the earlier conflict but it is clear that the accused acted more out of anger and retaliation than at the spur of the moment.    See, The State v Erinata Masina HH245/10.

The court rejects the accused’s evidence that the same subject featured during their journey home in favor of that of the first and independent witness who was more credible. The court believes the first witness’s version that after he intervened to stop the fight there was peace. They all peacefully walked towards home together. .

The partial defence of provocation works when there is spontaneity in the action taken in response to the provocative act or words. Once there is time to reflect then there must be a measure of self -restraint or control. A two staged Common Law approach as encapsulated in s239 of the Criminal Code, will then be invoked, the objective or reasonable person test and  the subjective test which is individual centric, See , Spencer Sithole v The State above.

Having noted that, the partial defence of provocation cannot succeed in the circumstances of this case and those of the accused person. Notwithstanding that there was an element of innocent beer drinking insinuated provocation and unexplained visit by the deceased the accused cannot be said to have lost self -control. He had ample time to reflect when he ran into his home, pick an axe and chased after a fleeing man. He did not stop there but struck the deceased thrice at the back of his head and shoulder a considerable distance from his protected sanctuary. When the deceased had left his yard he posed no threat. So in our view there was plenty of cooling of space in between the first visual sight of the opponent, the chase and the fatal assault. This takes us to the second issue.

Whether or not the accused acted in self defence?

It cannot be over emphasized that a person has the right to stand his ground defend himself his family relations or property. Moreso, when a man’s home is considered his fortress and sanctuary.  However, that right has to be exercised within the parameters or confines of the law. Our law recognizes that right in s253 of the Criminal Law Code [Chapter, 9:23]. The same proviso in s253(2) takes cognizance of the uniqueness of situations and persons. Hence, in the invocation of this right the actions are not judged not only objectively but subjectively from one’s own personal circumstances and comprehension of the perceived danger or threat. Nevertheless, it must be established that, there was an unlawful or imminent attack on his person, third party or property. The means to avert the attack must be proportional to the attack and whether the confrontation was the only recourse available to the accused in the circumstances. If all the elements stipulated in s253 above are satisfied the defence of the self can be a full defence leading to an acquittal in a charge of murder. If some of the elements are met but not all, it may lead to the reduction of the mens rea in murder. See S v Kashiri HMT 13/18.

The author J Burchell, in his book, Principles of Criminal Law (4th Edition) at page 400, states the position as follows:

“The objective test of private defence has the consequences that the court may decide that although the defender believed that he was entitled to engage in a defensive attack, objectively viewed the situation was not one in which he was justified in resorting to a defence or, if he was, the steps taken in defence exceeded what was necessary to repel the attack.”

In the South African case of S v Olivier 1993 (2) SACR (59), it was held as follows:

“From a juristic point of view the difference between these two defences is significant. A person who acts in private defence acts lawfully, provided his conduct satisfies the requirements laid down for such a defence and does not exceed its limits. The test for private defence is objective – would a reasonable man in the position of the accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E). In putative private defence it is not lawfulness that is in issue but culpability (‘skuld’). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’ s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.”

On examination of the present case, we have already dispelled the notion of the first alleged form of self -defence at the crime scene. There was no evidence to support that the accused was assaulted by the deceased on the chest. No such report was brought to the attention of the police. The same was totally omitted in the confirmed and warned cautioned statement now part of the evidence on record. An excerpt of the said statement, the accused stated as follow:

“By the time I arrived home, I found the now deceased standing on the yard with an axe handle. I asked him what he wanted during that time and he told me that he did not owe me any explanation. Fearing the threats that he had earlier made, I entered into the house and took an axe. Upon seeing the axe, the now deceased retreated and started to run away. I pursued him, caught up with him and struck him twice on the head and once on the left shoulder with the axe. He walked away as I walked back home. On my way, I met Themba Khumalo to whom I narrated the story and he subsequently apprehended me and recovered the axe”.

It is clear that from his own words which were later authenticated in terms of the law before a competent court or confirmation the deceased never attacked the accused. See, section 113 of the Criminal Procedure and Evidence Act [Chapter 9:07]. As soon as the deceased saw the axe he fled. This eliminates the insinuation of an intended, imminent threat or an unlawful attack. As revealed from the evidence of the accused’s mother, the deceased remained stationary talking to her upon the arrival of the accused. He never charged or raised his wooden axe handle at the accused. Had the deceased wanted to attack the accused would he have waited for him to go into the house and arm himself whilst he was at a standstill. It is illogical. The reasonable conclusion to be drawn is that the deceased never attacked the accused or intended to do so.  Most importantly,   it was not challenged that the accused chased the deceased, axe in hand, for approximately four hundred meters from his homestead.

Further, even supposedly, it is concluded that the mere presence of the deceased with a wooden axe within the backdrop of the earlier utterances, was some perceived  apprehensive attack, then why did the deceased chase him not only from the yard but 400 meters away. It shows that the accused was the aggressor who had resolved to attack the deceased not to scare him away from the confines of his property.

Whether or not the accused person is guilty of murder as charged?

The case of S v Mangwanda 2002(1) ZLR 574 (S) distinguishes murder with actual intent from murder with constructive intent. The State through its witnesses and documentary evidence had proved that the accused caused the death of the deceased beyond a reasonable doubt. The confirmed warned and cautioned statement and the autopsy report clearly substantiate that the deceased died as a result of being axed by the accused several times on the head. The cause of death was recorded as brain laceration, cranial vault fracture and severe head trauma. The weapon used, the amount of exerted and the part of the body the blows were directed is self-evident from the evidence before this court.

In S v Mapfumo & Ors 1983 (1) ZLR 250(S) the Supreme court emphasized that the accused person has no onus to prove his defence. It is apparent, that the slight provocation, intoxication, and the camaraderie relationship between the deceased and the accused negates the element of actual intention. What remains to be considered is whether or not there was constructive intention or mere negligence? It is obvious from the facts and evidence adduced by the State that the commission of the offense was not premeditated. Thus, murder with actual intent has not been proved.

Disposition

In summation, the State has discharged its burden of proof, that notwithstanding that there was an element of innocent provocation and unexplained visit by the deceased the accused cannot be said to have lost self -control. He had ample time to run into his home, pick an axe and chased a fleeing man. He did not stop there but struck the deceased thrice at the back of his head and shoulder. We agree with Mr Dhamusi for the State that the autopsy report reveal that the wounds were inflicted at the back. This portrays a person who was attacked whilst running or had fallen down. This illustrates the actions of a person who had a vendetta of being called a cattle thief, who then engaged in the conduct or went into a frenzy, realizing of the real risk and possibility that his conduct might result in the death of the deceased but continued to act recklessly despite the consequences. See S v Mungwandi above.

The State has thus proved beyond a reasonable doubt that the accused had the constructive intent to cause the death of the deceased. The submissions of an acquittal by the defence counsel do not hold.  The accused is found guilty of murder with legal intent.

Sentencing Judgment

The facts are by and large not in dispute. The accused has been convicted of murder with constructive intent for striking the deceased to death with an axe. In sentencing, we have taken into account the submissions in aggravation, mitigation as well as, from the victim impact statement and sentencing report.

In aggravation, the offence is serious. The loss of life can never be underplayed. Murder cases from artisanal mining areas are alarmingly on the increase. The sentencing guidelines impose a mandatory penalty of 20 years where there is a use of a weapon which aggravates the offence. In this case, an axe was used thrice, on the vulnerable parts of the human body resulting in fatal consequences. The accused gave chase to an already fleeing man who posed no threat for a considerable distance of 400 metres from his residence.

In addition, we have been told that the victim left three minor children with no one to fend for them but an already overburdened, single sister. They are not only orphaned but financially incapacitated. The gap created by the untimely death of the deceased in their lives will be a permanent void and will never be filled.

In light of the above, a balance should be struck between the interest of justice, society and the accused. In mitigation, the accused is a 20-year-old youth. Synonymous with this age group is impulsivity and immaturity in decision making, self -control and self-restraint. The accused also like the deceased comes from a broken home. His father deserted his family when he was in primary school. That derelict affected his schooling and he could not proceed any further with his education. The psychological effect of the broken home syndrome in children, victim to those set ups cannot be ignored by the society at large and in adjudication.

It is apparent, that the accused and the deceased were not only related by consanguinity, they were friends. On the day they had been drinking together. The court has also taken into consideration that although the partial defence of provocation could not succeed to lessen the mental element of the offence it can be considered as mitigatory. The evidence discloses that indeed the deceased’s words and his uninvited presence at the accused’s house after a scuffle was provocative. Especially, when the effect of voluntary intoxication is taken into the matrix. Both parties were under the influence of alcohol which also largely interfered with the actions of the day. Voluntary intoxication can also be considered as mitigatory in our law. See, The State v Elias Makando HMT 53-21 where MWAYERA J, as she then was addressed in detail the effect of voluntary intoxication on sentencing in murder cases. In our sentencing judgment in the case of S v Humphrey Gara HCC 2/24 we explained in detail what needs to be taken into account in sentencing in general.

It is our considered view that each case revolves on its merits. Justice should always be tampered with mercy. This case is distinguishable from other murder cases committed during robberies or other criminal ventures. It was not planned. It happened at the spur of the moment. The mitigation outweighs the aggravatory factors. A departure from the stipulated mandatory sentence is justified in the circumstances of this case. The accused person is sentenced to 12 years imprisonment.

National Prosecuting Authority, the State’s legal practitioners.

Chikwangwani, Tapi Attorneys, the accused’s legal practitioners.

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