The State v Dickson Kokwani Sabau

### Preamble
1
HH 135/2012
CRB 57/10
THE STATE
versus
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THE STATE
versus
DICKSON KOKWANI SABAU

HIGH COURT OF ZIMBABWE
BERE J
HARARE 27 July, 28 July, 30 July, 08 September, 15 September, 16 September and
23 September, 2010

Criminal Trial

ASSESSORS: Mr Barwa and Musengezi

Mrs S. Fero for the State
Mr LT. Musekiwa for the accused

BERE J: On the 1st of September 2008 the deceased Charity Mukarati tragically lost her life through gun shots. The tragic incident occurred at Plot 1 Goodhope farm, Marlborough, Harare. The plot in question is owned by the accused person having been awarded to him by a judgment of this Court on 1 March 2006.

It is clear from the evidence presented to this Court that despite the parties having ended their unregistered customary law union and having had their universal partnership terminated they continued to stay at the same property with the accused occupying the main house whilst the deceased occupied the other section of the house which used to operate as a Lodge. It is also clear that although the accused and the deceased were sharing the same property their relationship was an estranged one. They had a serious strained relationship and they continued to traumatize each other by staying together. They were simply incompatible.

The accused has been arraigned before this Court on a charge of contravening section 47 (1) Criminal Law ( Codification and Reform ) Act [ Cap 9:23 ], commonly referred to as murder. The State firmly believes the accused authored the deceased’s death.

The accused has denied the allegations and attributed the cause of death to some evil hand and not himself. The accused though admitted to the firing of two gunshots in the air on the fateful night in order to protect himself as he felt he was under threat from the deceased who had threatened to shoot him in the past.

In support of its case the State has relied on the following evidence:

a) The state sought and was granted admissions of the following evidence in terms of section 314 of the code; the evidence of Josiah Zidana, Joan Nyasha Dzimwazha, Teclar Musonza, Mahwinei Zhou and Smart Muponda.

In addition, the following exhibits were tendered by consent;

The post mortem report – exhibit 1, the accused’s confirmed warned and cautioned statement- exhibit 2, indications made by the accused person – exhibit 3, CID forensic ballistics report – exhibit 4, the alleged murder weapon p38 pistol serial number 1524B. – exhibit 5, and the application for post mortem examination form (form 231) – exhibit 6.

Apart from this the State also led viva voce evidence from the following witnesses; Avias Ndlovu, Sheila Artwell, Loveness Chavhunduka, Richard Busangabanje, Pedzisai Kativhu, Constable Zinawa, Constable Mugida, & Dr George Frank.

In support of its case, the defence relied on the evidence of the accused person Dickson Kokwani Sabau. The defence also sought to rely on certain aspects of the State case like namely of the admitted evidence of Joan Nyasha Dzimwazha which tended to suggest that three gunshots were fired.

The cause of death in this case is not in issue at all. The sole issue which the Court has to determine is who pulled the trigger which took the deceased’s life? Was it the accused person or some other unidentified individual?

The Evidence


The evidence of Avias Ndlovu was to the effect that on the evening in question he was at the scene of the crime having had an unhealthy confrontation with the accused earlier on that day over the switching off of electricity by the accused. Avias and his colleagues had damaged the accused’s door and a metre box in an effort to have electricity connected. It was Avias’s testimony that the accused had personally warned him and his colleagues that they would die for nothing if they continued pestering him about electricity. The accused made these utterances whilst holding a khaki envelope which Avias and company knew always contained the accused’s pistol.

Avias went on to tell the Court that, on this evening, and following a report by the accused at the police of his damaged property the police visited the scene of crime and struggled to arrest one Henry who was one of the suspects for having damaged the accused’s door and the electricity metre box in an effort to restore electricity.

Avias told the Court that being fully aware of the character of the accused he strategically positioned himself behind a pre-cast wall as he saw the accused drive and park his motor vehicle right in front of the deceased’s house. It was his evidence that as the deceased emerged from her house with one police officer following right behind her, he observed the accused remove his pistol from a khaki envelope and shooting twice at the deceased who was barely 2-3 metres away from him (the accused). The shooting floored the deceased and immediately the officer who was armed with an fn rifle fled from the scene followed by other officers who had been inside the home struggling to apprehend Henry. He observed the accused quickly driving off his motor vehicle with his son Ngoni inside the motor vehicle.

Avias told the Court that he was able to observe what happened as the accused had left his vehicle lights on and focusing on the deceased’s door.

The witness further told the Court that after the deceased had been shot at he heard two more gunshots but that these had nothing to do with the deceased’s shooting as these were subsequent developments.


The witness who had known both the deceased and the accused for two years explained the tense relationship that characterized the accused and the deceased during her life time. In his own words he described the two’s lives as follows:-

“ it was all about guns”

The witness also made it clear that the two were in the habit of always dragging each other to the police.

It was further the witness’s evidence that he was closer to the deceased, his land lady, than he was to the accused against whom they had lodged a complaint at Marlborough Central Police Station and Borrowdale but with no meaningful help coming from these police stations.

Avias further led evidence concerning how he himself personally apprehended the accused at Bira Restaurant along Five Avenue, in Harare that evening before the police eventually arrested the accused.

We have closely examined the evidence of Avias Ndlovu, bearing in mind the likely bias of that evidence and the possibility of exaggeration given his apparent sympathy with the deceased. We found no reason to disbelieve him. We accept his evidence as true and an accurate narration of the events of 01 September 2008.

Sheilla Artwell, a former tenant of the deceased was the next witness. Her evidence was that when she saw the accused drive to the deceased’s place she went to find out what he wanted since she understood the accused was not supposed to go to the deceased’s place because of the peace order in place.

She confirmed that when she entered the deceased’s house Henry was resisting arrest by the police details.

She confirmed that the deceased and the accused had a history of taking each other to Court but that she herself had not had any serious confrontation with the accused except on one occasion when the accused met her and warned her that they were not supposed to stay at the premises.


It was this witness’s evidence that as she walked out of the deceased’s house on that evening, the accused warned her not to move around as she would die for nothing. When she walked out she hid behind a pre-cast wall behind the accused’s motor vehicle. She said she could see clearly what was happening at the accused’s motor vehicle because the vehicle had its lights on.

The witness saw the deceased coming out of her house with Ngoni on her side. Just before the shooting she heard the accused instructing his son Ngoni to move aside and immediately thereafter she saw the accused pulling out his pistol from a khaki envelope and firing twice at the deceased who fell down right in front of the accused as she was shot at from a distance of no more that three metres.

When it was suggested to the witness that the accused would not have used his right hand because he was an amputee she was adamant she saw the accused use his right hand to pull the trigger.

The witness was very emphatic in her response to questions put to her in cross-examination and when it was suggested to her in cross-examination that;

(“The accused will say he never shot the deceased and the gunshots came from unknown source, she was very emphatic in her response and she retorted; “Those are lies”)

The witness said she only heard two gunshots.

In our close scrutiny of her evidence we were unable to find any possible cracks in her testimony. We were more than satisfied that this witness gave us an accurate account and that she saw everything that occurred from a vantage point.

Loveness Chavhunduka’s testimony was that she did not see or witness the shooting but that she only came to the scene after the event.

Loveness explained that she saw the deceased lying down clutching keys in her hand and that she found Tarisai Dzimwazha in the deceased’s bedroom looking for the deceased’s safe keys. The witness then went outside and removed the keys from the deceased’s hand and gave them to Tarisai.


The witness said Tarisai wanted to get the deceased’s fire arm from the safe but on opening the safe the fire arm was not there. The fire arm was only found under the deceased’s bed.

We found this witness to be a simple young and unsophisticated woman. We found her credibility quite pronounced by her unsolicited admission that she could not point at the accused as the culprit since she did not witness him commit the offence.

She confirmed the accused and the deceased always confronted each other in an unfriendly manner and that they had become enemies.

Her evidence was particularly important in that she gave an indication as to the stage at which the second fire arm was fired by Tarisai Dzimwazha. This was only after the deceased had died and after the fire arm had been recovered from underneath the deceased’s bed.

In our view this witness told it as she saw it. She was incapable of exaggerating on anything. We accept her version in its totality.

Richard Busabanye is a friend of the accused person and they have known each other for the past twenty years. That Richard is a friend of the accused is evidenced by the fact that Richard’s place was the accused’s first port of call after the tragic shooting at the accused’s place.

It was Richard’s evidence that on that fateful night the accused visited him at his shop called Chiremba Liquids and asked him to accompany him (the accused) to town to buy his medication which they did. He said after buying medication the witness suggested that they visit Bira Restaurant for a few drinks. He bought the accused one beer and another for himself. When he went to relieve himself he was utterly surprised to learn that the accused had been arrested on allegations of killing his wife, the deceased.


When he went outside he saw the accused in a police truck. It was his evidence that the accused had never disclosed to him either the alleged killing or the shooting at his place.

The witness remembered that when the accused had left his motor vehicle at his (witness’s place) he had taken with him a khaki envelope which contained the murder weapon p38 pistol which was subsequently recovered from the witness’s motor vehicle in his presence. He knew the pistol as belonging to the accused. He identified the firearm in Court.

Contrary to the suggestions made by the accused in his testimony that his fire arm was recovered not from this witness’s car but from the accused’s motor vehicle, it is simply impossible for us to think this witness misled the Court. In fact, our view is that wherever this witness’s testimony is in conflict with the accused’s version the accused’s story must be rejected because we found Richard’s evidence and his credibility to be beyond reproach.

Pedizsai Kativhu is one of the police officers who was at the scene of crime on the fateful night.

He is one of those details who were struggling to arrest one Henry inside the deceased’s house. He was honest enough to tell the Court that he did not witness the shooting but that he only rushed outside the deceased’s house after hearing two gunshots. He did not know the origins of those gunshots.

On coming out of the deceased’s house he witnessed the deceased lying down and the accused’s motor vehicle speeding off from the scene of crime.

It was his evidence that he and his other colleagues who had fled from the scene in panic later regrouped and chased after the accused’s motor vehicle but could not catch up with it. They later went to seek further reinforcements from the station and eventually arrested the accused at Bira Restaurant. The witness took part in the recovery of the murder weapon exhibit 5 from Richard’s motor vehicle.
 It was also the witness’s testimony that in the early morning of 02 September 2008 they visited the scene and recovered two cartridges that matched those from the accused’s p38 pistol as confirmed by exhibit 4 – CID Ballistics report.

The evidence of Constable Mugida tallied in all material respects with the evidence of Kativhu.

The only additional part of his evidence was that when he saw the injuries on the deceased there appeared to be three pronounced wounds which were subsequently and mistakenly referred to as having been caused by three shots on the deceased.

We found it quite significant that this witness’s observation of the wounds on the deceased tallied with the observations made by Dr George Frank on video tape of the post mortem examination.

Constable Zinawa told the Court that he was one of the three duly attested members of the ZRP who attended the scene of crime on the night in question.

He remained outside the deceased’s house armed with an fn rifle as his two other colleagues were struggling to arrest Henry Chagadama inside the deceased’s house.

It was his evidence that he saw the accused arrive at the deceased’s place shouting at the police officers complaining why they were not arresting Henry.

Almost at the same time the accused arrived, the witness saw the deceased coming out of her house holding keys in her hand complaining about her chickens which were getting bad because of the conduct by the accused of routinely switching off electricity. The witness heard the accused remark “Today this is your last day” and these utterances were followed by the firing of two gunshots by the accused directed at the deceased.

The witness panicked on seeing the deceased lying on the ground and fled from the scene as he regarded the accused as a dangerous armed person. He said the deceased was shot very close to him and that he could have been himself injured.

The witness’s observation of the shooting tallied with the evidence of Avias and Sheilla.


He confirmed that the accused used his right hand to fire at the deceased at close range. He estimated the distance between the accused and the deceased to have been between 2-3 metres.

Having fled from the scene he quickly regrouped with his colleagues and followed the accused who had quickly driven away from the scene but their effort was in vain. They then drove to the police station to get reinforcements.

We have no doubt in our minds that in the light of the evidence given in Court, the accused must have used his right hand to fire at the deceased. Yes, we observed that the accused’s fingers were amputated but we are satisfied beyond doubt that the accused exaggerated on his inability to use his right hand. In any event, the bottom line flowing from the evidence is that it was the accused who fired the pistol. Whatever hand he used does not matter.

Dr George Frank did not himself carry out the original post mortem examination. He was called to try and clarify the post mortem report since the doctor who carried it was an expatriate who had since left the country and proved extremely difficult to bring him back.

Dr George Frank is a general medical practitioner of 16 years experience. He was able to observe on a video tape the post mortem examination carried out by Dr Gonzales.

He concluded that the morphology of the wounds he observed suggests they were caused by two gunshots which would tend to tally with the viva voce evidence before this Court minus the evidence of Joan Nyasha Dzimwasha which seems to suggest that three gunshots were fired.

The Doctor’s evidence would also seem to be in line with exhibit 6 which suggests on circumstances of death that; ‘ The deceased was shot twice.”

We are satisfied that exhibit 6 was clearly explained by Constable Mugida and Dr George Frank that although the wounds appeared to have been caused by three gunshots, these were caused by two gunshots.

We accept that this is the most realistic and reasonable finding as it would be in line with the rest of the direct evidence that we have on record which cover the shooting itself. All those who witnessed the shooting heard and witnessed two gunshots so the evidence of Joan Nyasha Dzimwasha cannot be granted greater weight than the evidence of those witnesses who actually saw what happened from a vantage point.

The evidence tendered by the defence tended to lean on the defence of self-defence but a closer examination of what the accused himself alleges took place on the day in question does not even call into any serious examination of the legal requirements of the defence of self-defence. It remains a wishful defence which is not sustainable even if this Court were to accept what the accused alleged took place on the day in question.

The strategy adopted by the accused person appear to have been to offer a bald denial to the shooting of the deceased. In the process several inconsistencies have assumed center stage in his defence.

The critical part of the accused’s defence outline which was presented at this trial on 27 July 2010 is as follows;

“ The accused took his son to the motor vehicle that’s when he heard a gunshot and saw police details including one who was armed fleeing out of the gate. In fear of his life the accused took his P38 pistol from beneath the car seat and fired a warning shot in the air after which he heard another gunshot and he ordered the deceased or whoever was firing the shots to put the gun down. The accused fired another warning shot in the air and he then left the scene. As he was driving off he heard two more shots from the deceased’s direction. The accused had to protect himself as the deceased had always threatened to shoot him. The accused had even made some police reports in this respect.”

Compare the above with the accused’s confirmed warned and cautioned statement of 5 September 2008, four days after the shooting;

“ I specifically deny the charge in the manner alleged. I acted in self defence. I wish to place it on record that the deceased was charging towards me, shouting and fired two shots at me and I sensed danger and swiftly reacted in self defence.”

It will be noted that these are two mutually destructive positions adopted by the accused person. They cannot co-exist.

Secondly, it will be noted that whereas the accused suggests in his warned and cautioned statement that the deceased was the originator of the initial gunshots, and that she was charging and shouting at him, his *viva voce* evidence suggests the accused did not know the origins of the shooting from which he was trying to defend himself.

He further compounded his position by suggesting under cross-examination that on the day in question he never saw where the deceased was before the shooting. If he did not see where the deceased was or where the firing was coming from it remains a mystery that the accused could have raised the defence of self-defence.

Under cross-examination, the accused denied the indications which were part of the evidence accepted by the consent of the accused himself as indicated by his counsel.

The inconsistencies in the deceased’s story are so pronounced that we have unanimously agreed that they should not detain us in our endeavour to unravel the truth surrounding the commission of the offence the accused is facing.

Despite this however, we remain conscious of the fact that the onus to prove the commission of this case remains with the state.

We are unanimously satisfied that the overall picture painted in this case is that on the fateful day the accused was seen pulling his trigger against the defenceless deceased who had done nothing to warrant such kind of punishment.

We are also satisfied that in shooting the deceased directly at a distance of 2-3 metres with p38 pistol which was produced in this Court, there should be no speculation of what the accused intended to cause.

We are satisfied beyond doubt that the accused’s intention was to kill the deceased. In the result the accused is found guilty of the murder of Charity Mukarati with actual intention to kill.

**Extenuation**

Holmes J.A\(^1\) stated that:

Extenuating circumstances have more than once been defined by this Court as any facts, bearing on the commission of the crime; which reduce the moral blameworthiness of the accused, as distinct from his legal culpability. In this regard a trial Court has to consider;

\(^1\) State vs Letsolo 1970 (3) SA 476 AD at 476F-H


a) Whether there are any facts, which might be relevant to extenuation such as, immaturity, provocation as intoxication (the list is not exhaustive) b) Whether such facts in their cumulative effect probably had a bearing on the accused’s state of mind in doing what he did.
c) Whether such bearing was sufficiently appreciable to abate the moral Blameworthiness of an accused in doing what he did, In deciding (c) the trial Court exercises at moral judgment. If it is yes, it expresses its opinion that there are extenuating circumstances.”

Borrowing a leaf from the above general guidelines, we accept that the evidence before this Court points to the fact that there has been a protracted dispute between the accused and the deceased. This dispute dates back to 2003 and has stretched to the death of the deceased. During that period the parties had their universal partnership formally dissolved by this Court. Pursuant to the judgment of this Court in that civil suit the accused exercised the option of buying out the deceased from the parties’ matrimonial house. The deceased, despite having been paid out what was due her, stubbornly refused to vacate the property leading to a further discord.

The attitude exhibited by the deceased in refusing to give the accused exclusive and unhindered occupation of the house only helped to worsen the acrimony between the parties. Both of them acquired fire arms as a means of added protection against each other.

The intransigence on the part of the deceased meant that the accused could not utilize his lodge to derive any income as this is the property the deceased continued to unlawfully cling on to. The evidence presented also suggests that the deceased had turned the accused’s premises into a political field with several occupants accountable not to the accused but to the deceased herself.

The accused is now an amputee and he attributes his misfortune to the conduct of the deceased whose malicious or false allegations led the accused to being detained at remand prison which compromised his healthy between August 2005 and February 2006.


On numerous occasions, the deceased would ridicule or mock the accused over his disability which she incidentally the accused alleged the authored.

We accept that cumulatively, there has been so much acrimony and tension between the deceased and the accused. The parties would deliberately provoke one another and this had gone on for a long time – the two were simply incompatible. The accused found himself being emotionally stressed up. His efforts to have the deceased evicted from his premises proved fruitless despite engaging legal practitioners.

We are unanimously satisfied that from the submissions made by both the State and the Defence Counsel there is overwhelming support for a finding for the existence of extenuation in this case. We are satisfied that the accused must have been pushed to the limit by the deceased before he committed this heinous offence. That the situation the accused found himself in should inevitably reduce his moral blameworthiness finds expression in such cases as *Petros Chief Sibanda v The State²*, *Sibongile Muzimwa v The State³*, and *State v Gambanga⁴*

**Sentencing**

It is often said that “Sentencing is the blind end of justice.”

This is mainly because there is no mathematical formula that has to be followed in sentencing someone. At the end of the day the Court has to rely on a value judgment, of course taking into account the peculiar features of the case. Each case must always be dealt with in accordance with its own situation.

In our effort to arrive at an appropriate sentence we will be guided by the following features among others; all the factors that we have highlighted in our finding for the existence of extenuation.

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² Judgment No. SC 137/93  
³ Judgment No. SC 198/94  
⁴ Judgment No. SC 118/97


At 68, this is the first time the accused has been found on the wrong side of the law. The accused is in bad physical condition. He is diabetic and has had part of his limbs removed as a result of this.

He is a family man and has minor children who from the look of it are now extremely dependant upon him.

We will not lose sight of the apparent emotional stress which the accused has had to leave with particularly the persistent harassment the deceased had subjected him to before her death. Despite having been paid her share of the matrimonial house pursuant to the granting of the divorce order granted by this Court, the deceased continued to stay at the matrimonial house. The deceased would consistently mock and ridicule the accused’s physical disability as an amputee. Further the deceased would gang up with other outsiders to ensure that the accused did not enjoy his peace.

In aggravation we condemn the premeditation which apparently characterized this murder.

There is no doubt in our mind that the accused had planned this offence.

Secondly, the accused showed total disregard of the law enforcement agents by shooting the deceased in full view of the police.

That the deceased was unarmed is aggravatory.

We have followed the conduct of the accused person in this trial, even up to now we are unable to find any sign of remorse on his side: The accused is sentenced to undergo 16 years imprisonment.

Criminal Division of the Attorney General’s office for the State
Messrs Musekiwa & Associates, accused’s legal practitioners


CRB 57/10
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