Judgment record
The State v Edson Zikumva and 4 Ors
HH 164-11HH 164-112011
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THE STATE
versus
1. EDSON ZIKUMVA
and
2. PETER ZIKUMVA
and
3. FAST ZIKUMVA
and
4. SHERPARD ZIKUMVA
and
5. CHRISTOPHER ZIKUMVA
HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 2 July, 2008 and 3 July 2008 and 4 July 2008 and 19 July 2011 and 20 July
2011 and 21 July 2011 and 25 July 2011 and 26 July 2011 and 28 July 2011
Mrs Matsikidze, for the state
Mr Mareyanadzo, for 1st Accused
Mr Mungure, for the 2nd Accused
Mr Tandiri, for the 3rd Accused
Mr Mutungura, for the 4th Accused
Mr. Chikamhi, for the 5th accused
Criminal Trial
BHUNU J: The five accused persons are charged with murder it being alleged
that on 15 of April 2006 acting in consort and common purpose the accused persons
unlawfully with intent to kill murdered Onismus Zikumva by stabbing him once in the
chest with a knife and assaulting him all over the body with open hands, booted feet and
fists.
The five accused persons, the deceased and witnesses who testified in this case
are all related in one way or the other. They all reside in Zikumva village under chief
Nyashanu in the Buhera area
The second accused is the father of his four co-accused persons. He is also a
brother to the deceased’s father one Munodawafa. The second accused is an ex-
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combatant having fought in the liberation war of the 1970s. He joined the liberation
struggle leaving a wife at home.
Upon his return from the liberation struggle the second accused was shocked to
discover that while he was away his wife had an adulterous relationship with his brother
Munodawafa resulting in the birth of a girl child Enety Zikumva.
He disciplined both his brother and wife by assaulting them. Thereafter he
declared Enety to be his child and considered the matter closed. He condoned his wife’s
adultery and resumed normal married life with her. He brought up Enety as his own child
maintaining and sending her to school without any assistance from his brother the
biological father of Enety.
When Enety got married in 1999 second accused accepted lobola from her
husband. This did not go down well with Munodawafa who went behind his back and
demanded lobola from Enety’s husband claiming that as the biological father he was
entitled to Enety’s lobola and not the second accused. He is said to have taken a vow that
Enety would not give her husband any children until he had been paid his lobola.
As fate would have it, Enety lost two children in succession. This prompted her
and her husband to confront the second accused resulting in him surrendering both Enety
and the lobola he had received to Munodawafa. Munodawafa gladly received both the
child and the lobola thereby opening old wounds and sowing seeds of hatred between the
two families.
The matter lay dormant until the 15 th April 2011. The circumstances surrounding
the resuscitation of the issue are however in dispute. On that day there was a beer drink at
Rameck Rwisai’s homestead. It is common cause that the first four accused persons were
at the beer drink partaking of beer when a fight broke out resulting in the deceased being
stabbed to death. The circumstances leading to the death of the deceased are hotly
contested.
It is common cause that the first and second accused had a scuffle with the
deceased resulting in him being stabbed to death.
The post mortem report shows that death was due to a perforated heart. There was
a stab wound with sharp edges measuring 20 x 10mm. The wound was 134cm from the
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heel located 7cm from incline on the left side penetrating through 4 th intercoastal space. It
was traced through pericardium and penetrating arterial cavity (23mm arterial wound.)
The state alleges that all the five accused persons attacked the deceased resulting
in the first accused stabbing him to death.
The first accused denied stabbing the deceased saying that he had already been
rendered unconscious when the deceased was stabbed.
The second accused denied the charge saying that when the deceased was fatally
stabbed he had already left the scene after a scuffle with Chisipo, a brother to
Munodawafa the adulterer.
The third accused admitted stabbing the deceased to death He however, claims
that he stabbed him by mistake in self defence and in defence of the first accused as he
was being attacked with a shovel by the deceased.
The fourth accused admitted being involved in the scuffle but said that by the time
the deceased was stabbed he had already escaped to the river. He only returned later to
find that the deceased had been stabbed.
The fifth accused denied the charge raising the defence commonly known as an
alibi He denied being at the scene of crime at the material time saying he had gone
hunting with one Collin. He returned home late in the evening only to be greeted with the
news that third accused had stabbed the deceased to death.
Due to the adulterous relationship and the killing of Onismus I have adverted to
above, the two families of Munodawafa and Peter the second accused were highly
polarized thereby dividing the entire Zikumva clan on partisan lines. It is therefore,
difficult to find independent witnesses without bias one way or the other among members
of the Zikumva family.
This is compounded by the fact that Munodawafa has since confiscated or
attached 13 herd of cattle belonging to the accused’s family as compensation for the
death of his son. This was done while the accused are in prison and without being herd.
It is surprising that the state failed to find independent witnesses whose vision has
not been clouded by the dust of the conflict between the two feuding families among the
more than 30 beer patrons who must have witnessed the unfortunate incident. It is for this
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reason that state counsel made the valid concession that her witnesses tended to
exaggerate and embellish facts to suite their circumstances. That concession establishes
that the state witnesses were to a large extent not impartial but biased against the accused.
It is therefore necessary to scrutinize the evidence before us with assiduous care
and due diligence. It appears the problems at the beer drink were sparked by second
accused’s adulterous wife who picked up a quarrel with the deceased, the son of her
paramour Munodawafa. This sucked in the second accused and his children who were at
the beer drink.
According to the second accused this prompted Chisipo a brother to Munodawafa
to taunt and mock him saying he was priding himself buying beer with monies obtained
from their daughter Enety’s lobola. They were now going to take his wife. This sparked a
fight between Chisipo and the second accused. His eldest son the first accused intervened
and separated the two. Upon being restrained he immediately left for his home only to be
approached later in the evening by third accused confessing that he had stabbed the
deceased. He then asked the fifth accused who was coming from hunting to accompany
third accused to the police station to make a report which they did.
The Munodawafa family dumped the deceased who was still alive at his home.
The deceased passed away that night and second accused was arrested the following
morning together with his remaining sons at the instigation of the Munodawafa family.
The second accused’s evidence found corroboration in the evidence of his 4 co-accused
sons.
The state case was premised on the evidence was premised on the evidence of
Reuben Zikumva to the effect that the 2 nd incited his sons to kill the deceased. He
provided the murder weapon by handing over the murderous knife to third accused before
it fond its way to the first accused that used it to stab the deceased in the chest.
While the state witnesses were all agreed that it is the first accused who stabbed
the deceased to death, they differed materially on the identity of the murder weapon.
Lovemore Zikumva contrary to the evidence of Reuben Zikumva testified that it
was the third accused who produced the knife and tried to stab him but was blocked by
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the fourth accused, Shepherd. The first accused then immediately produced a knife and
stabbed the deceased in the chest.
Foster Zikumva testified that he did not see where the first accused drew the knife
from he only saw him stabbing the deceased in the chest. Rameck Zikumva’s evidence
was much to the same effect. He did not see where the first accused had drawn the knife
from. He however added that he had previously seen the second accused with what
looked like an Okapi knife with a brown handle.
It is however common cause that the murder weapon is a lethal knife with a silver
handle.
Chispo’s version which is generally the version of the Munodawafa camp is that
while they where at Rwisai’s beer drink the second accused stood up for no apparent
reason and started shouting he was restrained by Rameck Rwisai. The five accused
persons then attacked Lovemore Zikumva accusing him of being friendly to the deceased
the son of Munodawafa with whom the had a grudge
The deceased the stood up to intervene and the second accused ordered his
children to attack the deceased the Mbare way. It is that the third accused went and
leaned against the nearby granary wall drew a knife from his pocket and opened it with
his teeth because he only has one hand the other one was amputated at the elbow. He then
put the open knife in his back pocket and went back to rejoin the fight.
It is then that the second accused urged his sons to do it faster, faster. Accused
one upon the instigation of his father then drew the knife from third accused’s pocket and
struck the deceased in the chest with a back thrust, with his back to the deceased. The
deceased fell to the ground.
All the state witnesses testified that when the deceased fell to the ground the
second accused attacked him with a wooden mortar on the chest. His co-accused then
attacked him with logs, fists and booted feet for a prolonged period of up to one hour
before dispersing bragging that they had killed a jagwa that to say a useless animal.
All that evidence although unanimously given by state witness did not much
medical evidence. The post mortem report which was produced by consent of the parties
shows that apart from the stab wound the deceased sustained no further injuries. That
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evidence is amply corroborated by Chisipo who examined the deceased’s body shortly
after the attack. It was his testimony that apart from the stab wound he did not observe
any other injuries.
What immerges quite clearly is that there is a deliberate attempt on the part of
some state witnesses to link the second accused to the murder by falsely alleging that he
provided the murder weapon and struck the deceased with a wooden mortar. There was
also a false attempt to link the rest of the accused person to the murder by saying that
after the deceased had been stabbed they attacked him with logs, fists and booted feet a
fact which is at variance with empirical medical evidence.
Although the evidence of state witnesses was therefore dishonest and unreliable
the fact still remains that the deceased was stabbed by one of the accused persons on the
day in question. It remains for the Court on the evidence before it to identify the culprit.
It is common cause that third accused is the owner of the murder weapon. He
drew the weapon and prepared it for stabbing by opening it shortly thereafter the
deceased was stabbed. Immediately upon arriving home he confessed to his father that he
had stabbed the deceased. His father advised him to hand himself over to the police
immediately the same night which he did. He again confessed to the police that he had
stabbed the deceased. The murder weapon was recovered from him in his pair of gean
trousers.
The facts inexorably point to third accused as the person who delivered the fatal
blow. We therefore unanimously find as a fact proved beyond reasonable doubt that it is
the third accused who stabbed the deceased.
Having come to that conclusion the next question for determination is whether or
not he was acting in self defence. His defence is that when a fight broke out between first
accused and the deceased broke out the deceased got the better of him and knocked him
to the ground. The deceased then picked up a shovel to attack the second accused. It is
then that he picked the knife which had been dropped by revelers who had been making
baskets. He wielded the knife with the intention of frightening the deceased.
Unfortunately the deceased advanced towards him and was accidentally stabbed.
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The third accused’s defence is a hard sell. The deceased was out numbered apart
from him none talks about the shovel. In any case the nature of the weapon used and the
amount of force used by far exceeded the bounds of self defence in the circumstances
His contact in stabbing the deceased was intentional and reckless. He is
accordingly found guilty of murder with constructive intent.
In respect of the fifth accused the state has made the valid concession that there is
no evidence linking him to the murder. The state has suggested that he be found guilty of
assault. In our view there is no basis for finding him guilty of assault when his defence of
an alibi has not been rebutted and the evidence of state witnesses against him has been
thoroughly discredited.
Accused fourth’s defence is that during the fight he escaped to the river before the
deceased had been stabbed. When he it was on his return that he found that the deceased
had been stabbed. Likewise the second accused’s defence is that during the fight he fled
home before the deceased had been stabbed he never returned to the scene. He was only
advised later that evening of the stabbing. Given the paucity of the evidence of state
witnesses we are of the firm view there is nothing to rebut the operation of accused 2 and
3’s defenses.
As regards accused one it is not in dispute that he was actively engaged in a fight
with the deceased when he was fatally stabbed by third accused. Having found that it is
the third accused that stabbed the deceased, it follows that the first accused did not stab
the deceased as alleged by state witnesses.
That being the case the next question for determination is whether or he was
acting in common purpose with the third accused when he stabbed the deceased.
To found liability on the basis of common purpose the state must establish that the
killing of the deceased fell within the common design of the group. See S v Chauke &
Another 2000 (2) ZLR 485. In this case no evidence was led by the state to establish that
it was the common purpose and design of the five accused persons to kill the deceased. In
fact all the five accused persons were at the scene of crime for the purpose of drinking
beer. It was fortuitous that the deceased was also at that place. Had Chisipo and the
second accused’s wife not triggered the fight deceased would not have been killed. That
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being the case third accused must solely shoulder the responsibility for the deceased’s
death. In the result it is accordingly ordered:
1. That 3rd accused, Fast Zikumva be and is hereby found guilty of the murder of
Onismus Zikumva with constructive intent.
2. That 1st accused, Edson Zikumva, 2nd accused, Peter Zikumva, 4th accused,
Sherphard Zikumva and 5th accused Christopher Zikumva be and are hereby
found not guilty and acquitted.
Office of the Attorney General, legal practitioners for the State
T.A. Toto, legal practitioners for the 1st accused.
Blessing and Mungure, the 2nd accused’s legal practitioners
Maunga & Associates, the 3rd accused’s legal practitioners
Mutungura and Partners, the 4th accused’s legal practitioners
Kusemwa Wedu & Partners, 5th respondent’s legal practitioners