Joseph Murahwa & 5 Ors v The State

### Preamble
1
HH 691-18
CA 151/17
---------


JOSEPH MURAHWA

and

PHILLIP MURAHWA

and

ISHMAEL MURAHWA

and

LUKE MURAHWA

and

ISIAH MURAHWA

and

TAWANDA MURAHWA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & WAMAMBO JJ

HARARE, 25 September 2018 & 24 October 2018

Criminal Appeal

C K Mutevhe, for the applicant

E Makoto, for respondent

WAMAMBO J:  The Six appellants were convicted of contravening s 4 as read with s 3 (1) (a) of the Domestic Violence Act [Chapter 5:16)] (hereinafter called The Domestic Violence Act) Five of them were each sentenced to 12 months imprisonment of which 4 months imprisonment were suspended for 5 years on the usual conditions of good behavior while  the third appellant was cautioned and discharged because he was a minor.

Dissatisfied with both the conviction and sentence appellants lodged an appeal.  Before us Mr Mutevhe abandoned five grounds of appeal and addressed us on only two grounds of appeal on conviction. The grounds that Mr Mutepfe addressed us on are as follows:

“(1) The Court a quo erred when it charged Appellants of committing the crime of ‘Physical Abuse’ as provided in the Domestic Violence Act [Chapter 5:16] when in fact it was incompetent or defective to proceed with the charge under the said Act”

“(2) The Court a quo erred in failing to realize the state witness qua complainant in the State Case does not qualify or meet the definition of the complainant as defined by the Domestic Violence Act, consequently the charges against the Appellants were null and void.”

The two grounds are basically one ground with its root grounded on the definition of what is a complainant in the Domestic Violence Act.

A complainant is defined in s 2 of the Domestic Violence Act as follows:

2 (1) In this Act –

Complainant in relation to a respondent means:-

a current, former or estranged spouse of the respondent or

a child of the respondent whether born in or out of wedlock and includes an adopted child and a step child or

any person who is or has been living with the respondent, whether related to the respondent or not or

any person who-

Cohabits with the respondent or

is or has been in an intimate relationship with the respondent

……………………

It is clear that the complainant in the instant case does not fall in any of the categories as defined in the Domestic Violence Act. Flowing there from is the fact that the State fell into error by proffering a charge under the Domestic Violence Act. The proper charge should have been a contravention of s 89 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (assault)

Section 274 of the Criminal Law Codification and Reform Act is of application in this case. It reads as follows:-

“274 Conviction of crime other than that charged

Where a person is charged with a crime the essential elements of which include the essential elements of some other crime, he or she may be found guilty of such other crime if such are the facts proved and it is not proved that he or she committed the crime charged.”

Also See S v Chidime 1990 (1) 267 (H).

There is no prejudice to the appellants if the current charge is substituted with that of 	contravening s 89 of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. It is clear from the start the appellants  were charged of having unlawfully and intentionally commiting an assault upon Isaiah Murahwa with sticks on his back whilst tying his hand and legs with a rope with intention to cause bodily harm.

Once it is found that the two grounds of appeal against conviction fall away what remains are the following facts.

Complainant is a brother to the appellants Harbouring a belief that complainant and his mother were practicing witchcraft to the detriment of other family members the appellants and others who are at large, kidnapped complainant from Mutare City. Thereafter they drove to Gwidibira Village in Zimunya where they tied complainant’s hands and legs and proceeded to take turns to assault him with sticks. Complainant was forced to agree to kill his mother and when he saw her he refused to kill her as previously undertaken. This resulted in further assaults from the appellants. The complainant’s wife pleaded with the appellants to stop the assaults to no avail. Complainant was forced to go to his home by four of the appellants where the assaults continued.

A neighbour intervened thereby ending the assaults but not before complainant was forced by his captors to declare that his mother was a witch and that she would not bewitch family members again.

A medical report chronicling complainant’s injuries as a result of the assaults at the hands of the appellants reflects in part that he had multiple bruises on the back, that the degree of force used to inflict injuries was moderate and that the injuries were serious.

Complainant also testified that he was detained at hospital for medical attention for eight days as a result of the assault.

On sentence two grounds of appeal are raised. The first one is that the sentence passed “is so manifestly excessive as to induce a sense of shock”. The second ground is that the trial court erred by not considering the imposition of a fine or community service.

In a balanced judgment on sentence the trial magistrate was clearly aware of the full circumstances of the matter. The judgment highlights both the mitigatory and aggravatory circumstances.

Although the original charge has been substituted with that of assault in contravention of s 89 of the Criminal Law (Codification and Reform) Act) [Chapter 9:23] the circumstances under which the offence was carried out  remain serious.

That brothers, albeit sharing a father with complainant would immobilize, physically attack and use force and threats to humiliate complainant and his mother amounts to serious aggravatory circumstances.

It is in the circumstance not an offence attracting a fine or community service. Were it not for a neighbour’s intervention and the fact that complainant adhered to the forced instructions to declare his mother a witch more serious harm may have visited him. This is clearly a serious matter deserving a prison term for the appellants. Defence counsel when requested to cite  similarly decided case where community service performance or a fine was found to be the correct sentence was unable to do so.

We however find that case law reflects that the sentence as meted out by the trial court is in the vicinity of other similar decided cases.

See The State v Juliet Philip HH 361-17 and The State v Tapiwa Madyambudzi HH 333/17.

In the result we find as follows:

The conviction on a charge of contravening s 4 as read with s 3 (1) (a) of the Domestic Violence Act is hereby set aside and substituted with a conviction of assault in contravention of s 89 of the Criminal Law (Codification & Reform Act) [Chapter 9:23].

We dismiss the appeal on sentence.

HUNGWE J agrees ………………………….

Mugadza, Chinzamba & Partners, appellants’ legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners