THE State V Edmore Magodo

### Preamble
1
CRB 48/17
HMA 27/17
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THE STATE

versus

EDMORE MAGODO

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 23, 24 May, and 9 June, 2017

Assessors

Mr Gweru

Mr Dauramanzi

Criminal Trial

Mr T. Chikwati, for the State

Mr L. Muvengeranwa, for the accused

MAWADZE J:	The accused is facing a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23].

The charge is that on 24 December 2011 at Village 4 Faversham Range in Triangle the accused unlawfully caused the death of Sharai Murowa, a female adult by striking her with a piece of burning fire wood on the head intending to kill her or realising that there was a real or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

At the material time the accused was aged 30 years and the now deceased 77 years. They were related in that accused’s mother and the now deceased were married to the same husband, with accused’s mother being the junior wife. At the time of the alleged offence both the accused’s mother and father were deceased. After the death of his parents the accused remained staying with the now deceased and his siblings at Village 4 Faversham Ranch in Triangle. The accused later left the homestead and was away for a very long time. The now deceased remained staying with her son Zukwa Magodo, Zukwa Magodo’s wife one Evelyn Gura. The accused returned on Christmas eve on 24 December 2011 at about 2300 hrs carrying a crate of opaque beer. It was raining. The accused then invited his half-brother Zukwa Magodo and cousin Bensen Magodo to join him to drink beer while in Zukwa Magodo’s kitchen hut. Inside that kitchen hut were the now deceased, Evelyn Gura, Godfrey Magodo born to Zukwa Magodo and Bensen Magodo, the accused and other two minor children.

The State case is that a misunderstanding arose between the accused and Zukwa Magodo. The accused is said to have alleged that the now deceased was a witch who had cast some evil spirit on the accused. The State alleges that the accused proceeded to pick a piece of burning firewood from the fire place and struck the now deceased on the head, inflicting a deep cut. The accused is said to have proceeded to kick the now deceased several times on the chest with booted feet as the now deceased struggled to escape out of the hut.

The accused is said to have been restrained by Bensen Magodo. It is further alleged that the accused in a fit of rage proceeded to kill the now deceased’s goat and chicken after which he burnt her clothes. The accused is said to have thereafter fled from the scene and was only arrested five years later while he was lodged in Chiredzi prison using different names. Meanwhile the now deceased was hospitalised at Chiredzi District Hospital but passed on due to the head injury on 2 January 2012.

In his defence outline the accused said the argument between him and Zukwa Magodo on 24 December 2011 as they were drinking beer was centred on how they were to share some cattle belonging to their late aunt. The accused said it is Zukwa Magodo who then picked a piece of burning firewood from the fireplace intending to assault the accused.  The accused said he managed to dodge and the blow landed on the now deceased’s head. At that point accused said Evelyn Gura and her son Godfrey Magodo fled from the hut. The accused said Zukwa Magodo then ordered accused to pack his belongings and leave the homestead. The accused said he then left with Bensen Magodo and spent the night at Bensen Magodo’s home after which accused proceeded to Chiredzi the next day. The accused denies assaulting the now deceased in any manner or killing the now deceased’s chicken or goats or burning her clothes.

From the evidence before us the cause of the now deceased’s death is not in issue. The post mortem report shows that the now deceased’s remains were examined by David Tarumbwa on 5 January 2012 who made the following observations and findings;

“Elderly deceased had obvious signs of head injury with epistaxis and bleeding from ears. Fractured occipital skull with celebral haemorrhage”

The cause of death is indicated as head injury.

The narrow issue to be resolved by the court therefore is whether it is the accused or Zukwa Magodo who inflicted the fatal head injury on the now deceased.

The evidence of Dr David Tarumbwa who compiled Exhibit 1, the post mortem report was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Cap 9:07].

The accused gave evidence and did not call any witnesses.

The State solely relied on the testimony of Evelyn Gura. This is so because before accused’s arrest both Zukwa Magodo and Bensen Magodo died. Godfrey Magodo who was also present on the day in question is said to be in South Africa and cannot be located. We therefore have to look at the evidence of the accused and Evelyn Gura to resolve the issue in dispute in this case.

THE EVIDENCE

EVELYN GURA (EVELYN)

Evelyn was married to the late Zukwa Magodo and she is a fairly old woman. The now deceased was her mother in law whom she was staying with at the material time. She said although the now deceased was very old (77 years old) she enjoyed fairly good health as she could walk on her own, perform household chores like cooking and tilling the land. She gave us an insight into the accused’s family background.

Evelyn said accused’s mother who was much younger to the now deceased was married to the same husband with the now deceased.  Accused’s mother then passed on leaving accused and his siblings who remained staying with the now deceased. She said accused’s mother passed on after she had gone back to her maternal home. Accused’s father later died. After his father’s death accused remained staying with Evelyn and the now deceased but later on just left home.

Evelyn said accused was away for a long time and later returned. He found that Evelyn, her husband Zukwa Magodo and the now deceased had no food and he bought them a bucket of maize for US$7. The accused even took Zukwa Magodo and Bensen Magodo for a beer drink at local Business Centre after which he vanished again.

Evelyn said accused then resurfaced on the day in question on 24 December 2011 when he arrived with a crate of opaque beer at about 11.00 pm and woke up both Zukwa Magodo and Bensen Magodo so that they could drink beer while seated in the kitchen hut where Evelyn, Godfrey Magodo and the now deceased were.

According to Evelyn accused was moderately drunk and as they were drinking the first pack of opaque beer accused suddenly confronted the now deceased whom he asked how accused’s mother had died. The accused also wanted to know why the now deceased had not attended the funeral of accused’s mother. The now deceased responded that she failed to attend the funeral as her legs were painful but accused retorted that she was lying and was not ill at all. The accused then threatened mayhem saying he was prepared to cut off the heads of all persons present in that hut. Accused then picked a glowing piece of firewood from the fireplace which was about 1 metre long and fairly thick. Accused used both hands and struck the now deceased with the piece of firewood on the head as the now deceased was seated. He used a lot of force. Due to fear Evelyn and her son Godfrey Magodo bolted out of the hut into the rain. They sought refuge at an abandoned home and could hear accused shouting for a while. Evelyn said she could also hear thudding sound but was not able to tell what was going on.

The next morning, she returned to the homestead and learnt that her husband Zukwa Magodo had also spent the night in the bush. It is at that stage that she saw that a bag with the now deceased’s clothes had been burnt on the yard and a goat and chicken belonging to the now deceased had been slaughtered. She found Bensen Magodo at the homestead who indicated that the now deceased had been severely injured and could no longer talk.

Evelyn said she then saw the now deceased who had a bleeding wound on her head and could no longer talk or help herself. Her husband Zukwa Magodo then rushed to the local police base to make a report. Accused was nowhere to be found. Zukwa Magodo came with the police and a motor vehicle to ferry the now deceased to hospital on 25 December 2011. He paid a beast to the owner of the motor vehicle. The now deceased remained detained in hospital until she died. The accused did not attend her funeral.

Evelyn said a few days after the burial of the now deceased the accused came back at their homestead at dusk saying he wanted to now deal with Zukwa Magodo. In fear Evelyn and Zukwa Magodo called for help from neighbours but accused fled. She never saw accused again from that day in early 2012 until in 2016 after accused’s arrest. Evelyn said later her husband Zukwa Magodo and Bensen Magodo passed on. Accused did not attend their funerals. Her son Godfrey Magodo felt insecure and decided thereafter to go to South Africa.

Under cross examination Evelyn disputed that on night in question there was any dispute about sharing of any cattle pointing out that at that material time only one beast remained. She remained adamant that it is accused who fatally assaulted the now deceased on the head and dismissed accused’s version that it is her husband Zukwa Magodo as false. She also denied assertions that at the material time the now deceased was very ill and could not talk. Instead she said the now deceased’s condition arose from the assault by the accused. Evelyn said no neighbour heard the commotion that night as it was raining.

In our view Evelyn gave a very clear and straight forward account of what she perceived happening. The cross examination did not at all change the colour of her evidence in any way. As already said she is a fairly old woman who clearly appeared sincere in all what she said. She was prepared to give accused credit for buying them maize grain and inviting her husband to a beer drink at accused’s cost. She was sober on the night in question and clearly saw how the now deceased was injured. We are unable to make any adverse finding in relation to her evidence. Her credibility is therefore beyond reproach.

ASSISTANT INSPECTOR GUSENI MUCHARA (ASS. INSP. MUCHARA)

Ass. Insp. Muchara was the initial investigating officer in this matter and was at that time based at ZRP Triangle. She is now based at ZRP Zvishavane.

Ass Insp Muchara said an initial report of the now deceased’s assault was made at a local police base by Zukwa Magodo against the accused on 25 December 2011 and that police details at the police base attended to it but failed to locate the accused. She said when he now deceased later passed on at Chiredzi District Hospital she then took over the matter and that it is Zukwa Magodo who again advised the police of the now deceased’s death.

Ass Insp Muchara said she attended the scene of crime with Zukwa Magodo and was shown the kitchen hut in which the now deceased was assaulted. She was advised that the assault by accused was done in the presence of Evelyn, Zukwa Magodo, Bensen Magodo and Godfrey Magodo. She recorded statements from all these witnesses. She was not able to recover the piece of firewood used to assault the now deceased as it was said to have been completely burnt that night of the assault.

Ass Insp Muchara said she proceeded to Chiredzi District Hospital to examine the remains of the now deceased. She observed that the now deceased had an open wound on the head. She said she then started to try locate the accused to no avail as his whereabouts were unknown. The accused was not even communicating with any known relative. She even caused an announcement to be made on ZBC Radio Zimbabwe that accused was wanted by the police in connection with this murder case but nothing came out of it. Ass Insp Muchara said police were looking for accused from 25 December 2011 and that when she transferred from ZRP Triangle in December 2013 the accused had not been located. She does not know how and when accused was arrested.

The only issue put to Ass Insp Muchara was that accused was not on the run at all. In response she said accused was indeed on the run as he disappeared from the date of the assault, was not in touch with any relative and police efforts to locate him were in vain.

The evidence of Ass Insp Muchara is clear and requires no further elaboration. Indeed, it is not possible that police would have failed to locate the accused after all such efforts if accused was not on the run. Why would accused suddenly go under the radar, fail to communicate with any relative or even to attend funerals of his relatives.

SGT. LYTON MLAMBO (SGT. MLAMBO)

Sgt Mlambo is the detail who took over this matter from Ass Insp Muchara and arrested the accused on 10 May 2016.

Sgt Mlambo said police later learnt that accused was lodged at Chiredzi prison but was using different name Trust Zingwandi. He proceeded to Chiredzi prison and arrested the accused. Upon inquiry accused acknowledged he was using different name but his explanation was that it was not to evade this case but to mislead a certain woman he was in love with. He took accused to the scene of crime and accused denied the offence implicating Zukwa Magodo who by then was late. He re-recorded statement from Evelyn and Godfrey Magodo who were still available as Bensen Magodo had also passed on.

No useful questions were put to Sgt Mlambo as his evidence was virtually unchallenged.

THE ACCUSED

The accused who is now 36 years old adopted his defence as his evidence. In essence he maintained that it is the late Zukwa Magodo who, in a deflected blow scenario missed the accused and hit the now deceased on the head. The accused seemed to discount that the now deceased was fatally assaulted insisting that on that day the now deceased was very ill suffering from painful legs, high BP and unable to talk. It would seem accused is of the view that the now deceased died due to natural causes. The accused said the dispute leading to this altercation centred around the sharing of their late aunt’s cattle from which Zukwa Magodo wanted accused to be excluded as a beneficiary as he was born to the junior wife. The accused said when he protested Zukwa Magodo decided to attack him. The accused denied that he was on the run but that he had left at Zukwa Magodo’s instance who had banished accused from this homestead. The accused said he relocated to Mkwasine and was unaware that police were looking for him. Accused said on 29 December 2011 he had returned to Bensen Magodo’s homestead where he was advised that the now deceased was detained at Chiredzi District Hospital. Accused said he proceeded to the hospital but inexplicably failed to locate the now deceased. The accused said he could not attend the now deceased’s burial for fear of Zukwa Magodo and also failed to attend Zukwa Magodo’s funeral for fear of other relatives. Accused said he only attended Bensen Magodo’s funeral in 2013 and still intends to pay his condolences in respect of both the now deceased and Zukwa Magodo. The accused said Evelyn is a liar who is protecting her late husband Zukwa Magodo and that in the past she and Zukwa Magodo had falsely accused him of assault leading to accused’s arrest. Accused said he only used false names in order to mislead his girlfriend and was not on the run.

We find it improbable that accused would simply vanish into thin air after this incident if indeed he was as innocent as he purports. The accused’s conduct betrays a guilt mind. If indeed accused was the intended victim on the night in question one would have expected him to file a police report against Zukwa Magodo moreso if in the past Zukwa Magodo and his wife Evelyn had falsely incriminated him. The accused’s explanation of failing to attend the funeral of the now deceased and Zukwa Magodo or paying his condolences to such close relatives is simply incredible. To cap it all the accused had abandoned his real name and was now using a false name even to the police. The inference one can draw from such conduct is that accused was concealing his identity because he was aware that he was on the police wanted list. If the events had happened as per accused’s version there would be no reason for the accused to go underground and change his identity.

THE LAW

In terms of s 269 of the Criminal Procedure and Evidence Act [Cap 9:07] it is competent to convict an accused person on the evidence of a single witness. The relevant section provides as follows;

“269.	Sufficiency of one witness in criminal cases except perjury and treason.

It shall be lawful for the court by which any person prosecuted for any offence is tried to convict such person of any offence alleged against him in the indictment, summons or charge under trial on the single evidence of any competent and credible witness;”

The proviso gives an exception to this rule. See also S v Tsvangirai & Ors. 2003 (2) ZLR 88 (H).

What is important in such a scenario is for the trial court to be alive to the fact that where there is only one or single witness to the crime special evidential rules apply. This of course would depend on whether the single witness is a suspect witness or not. In casu Evelyn, the single witness is not a suspect witness, she is merely a single witness.

Due to passage of time the other eye witnesses Zukwa Magodo, and Bensen Magodo have since passed on. Godfrey Magodo cannot be located as he is now in South Africa. The State case therefore rests on the single witness Evelyn who is available. This scenario has often been referred as a boxing ring situation because the trial court can either believe the single witness or the accused. What the trial court should endeavour to do is to guard against the obvious risk of convicting the accused on the basis of uncorroborated evidence of a single witness. The single witness should therefore be credible in all respects. The attendant risks like poor observation, faulty recollection of events, bias etc should be eliminated. What matters at the end of the day is the quality rather than the quantity of evidence led? This approach is clearly laid down by EBRAHIM JA in the case of S v Zimbowora 1992 (1) ZLR 41 (S) at pp 42 E – F wherein the LEARNED JUDGE OF APPEAL pointed out that although a trial court is entitled to convict the accused on the evidence of a single witness who may even be a complainant it is necessary for such evidence relied upon to be clear and satisfactory in every material respect in order to exclude dangers inherent in such evidence like bias or interest. As was said by GILLESPIE J in S v Mutandi 1996 (1) ZLR 367 (H), at 371 G – H the trial court should engage in a reasoning process which clearly shows that it was alert to the dangers of such a witness and how it has excluded such dangers.

In the case of S v Mokoena 1956 (3) SA 81 (A) useful guidelines are outlined on how the uncorroborated evidence of a single witness should be relied upon or assessed. The trial court should ask itself such questions;

What is the character of the single witness?

Does the witness exhibit reliable recollection of events in issue?

What is the level of intelligence of the witness and how does this impact on the witness’s capacity to observe?

What is the degree of objectivity of the witness or bias?

It is only after such an approach that material imperfections are excluded and the testimony of a single witness which is clear and satisfactory can be accepted. Further minor, or non-material shortcomings or defects should not cloud the mind of the court. The degree of contradictions in the testimony of a single witness must be of such magnitude and value that it goes to the root of the matter thus making any conviction upon such evidence unsafe. See S v Nduna and Anor. 2003 (1) ZLR 440 (H).

The only exhortation I wish to make is that it is always preferable and advisable for the state not to rest its entire case upon the uncorroborated evidence of a single witness. While such a scenario may not be avoidable as state witnesses may die due to passage of time or due to self-induced unavailability of the accused person like in this case or the attendant delays inherent delays in our criminal justice system, caution should always be exercised in dealing with such evidence.

In our case we have applied our minds to the evidence of Evelyn. She is an unsophisticated elderly rural woman who is barely literate. Her recollection of events of the day in issue is clear and cannot be faltered. We did not find any reason as to why she would lie. The simple issue which falls for determination from her evidence is who struck the now deceased. She was clear it is the accused and we accept her evidence.

In our view the accused’s conduct showed recklessness. The accused used a piece of firewood with such high degree of force using both hands that he fractured the now deceased’s skull causing celebral haemorrhage. The now deceased was a frail 77-year-old defenceless woman. After such conduct accused simply vanished into thin air. The accused fully appreciated his conduct despite having taken some alcohol. The only inference we can make is that the accused subjectively appreciated that the manner in which he assaulted the now deceased could possible result in her death. He was nonetheless reckless whether or not death would result from his conduct.

The accused cannot in the circumstances escape liability on a charge of murder with constructive intent in contravention of s 47(1)(b) of the Criminal Law (Codification and Reform) Act, [Cap 9:23].

VERDICT:	Guilty of contravention section 47(1)(b) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] – murder with constructive intent.

SENTENCE

The consistent lack of contrition by the accused person in this matter is shocking to say the least. The accused’s conscience is not at all pricked by the fact that he killed an ailing and defenceless 77 years old woman who could well be the age of his grandmother for no discernible reason. The callousness of the accused is just shocking.

We would have expected the accused to at least by now have owned up to his conduct. The fact that the accused chose to lie about how the now deceased met her demise would suggest that he had no genuine grievance against her.

We have no doubt in our minds that the attack on the now deceased was premeditated. The accused had simply consumed some beer in order to get Dutch Courage as it were. No wonder why soon after starting drinking beer the accused took issue with the now deceased over her failure to attend the funeral of accused’s mother.

Although the accused delivered a single blow on to the now deceased’s head, it was brutally executed with a very high degree of force. The accused used a piece of firewood which was 1-metre-long and had to use both hands. In the process he fractured the now deceased’s skull.

After committing such a heinous act the accused simply fled and did not offer any help to the now deceased. He did not attend the now deceased’s funeral. To date he has not offered any condolences despite that the now deceased was a close relative. Instead he chose, at one point, to return and threaten the now deceased’s son Zukwa Magodo.

The lack of respect of the sanctity of human life shown by the accused is baffling. The court has a duty to remind the accused that human blood is sacred.

We have however considered the personal circumstances of the accused despite his determination to avoid the long arm of the law, a battle accused would never win.

The accused is now 36 years old and was 30 years old when he committed this offence. The delay of 6 years to finalise this matter was solely caused by the accused who was on the run and had assumed a new identity. The fact that accused was arrested while in prison shows his scant respect for the law.

It is unfortunate that the accused’s wife and two minor children would now suffer as a result of accused’s conduct. Accused has no means of income as he neither has savings nor assets for his family to fall back on.

The other discernible mitigatory factor worthy considering is that the accused suffered from pre-trial incarceration for a year.

All in all, a sentence of 18 years imprisonment is appropriate in that case.

National Prosecuting Authority, counsel for the State

Legal Aid Directorate, pro deo counsel for the accused.