THE State V Kenias Kwangwari

### Preamble
1
HMA 19-18
CRB 113/17
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THE STATE

versus

KENIAS KWANGWARI

HIGH COURT OF ZIMBABWE

MAWADZE J,

MASVINGO, 12 FEBRUARY & 2 MARCH, 2018

Assessors

Mr Gweru

Mr Mushuku

Criminal Trial

B.E. Mathose for the state

J. Mupoperi for the accused

MAWADZE J:	This matter is mired in domestic violence which culminated in the now deceased’s death. The question which therefore exercised the mind of the court is whether the defence of provocation is available to the accused.

The charge the accused is facing is that on 8 July, 2017 at Tarisayi Village, Chief Nyajena, Masvingo the accused caused the death of Naume Maziofa by striking her several times on the head and back with a wooden ram and also several times all over the body with an axe.

The accused and the now deceased were cohabiting as husband and wife at the now deceased Naume Maziofa’s homestead in Tarisai Village, Chief Nyajena, Masvingo. The now deceased had been married in Mberengwa but had returned to her maternal home with two children from that marriage, Yolanda Hove aged 14 years and Sandra Hove aged 7 years. She had one other very young kid with the accused. She was staying with the 3 children and the accused at her maternal home. Her mother who was ordinarily resident at this homestead had gone to stay with one of her sons.

It is common cause that the accused and the now deceased were constantly having domestic disputes. The cause and nature of those domestic misunderstandings have not been clear or outlined. It is however said that the two resolved to seek the assistance of the police at Renco Mine to try and find a solution to their domestic issues.

The state alleges that on 8 July 2017 the accused was however irked by the now deceased’s insistence to go to police at Renco Mine and that the accused decided to attack the now deceased.

It is the state case that the accused followed the now deceased in the bedroom and attacked her several times on the head and back with a wooden ram. The now deceased is said to have cried out for help and was heard by her two daughters Yolanda Hove and Sandra Hove. The accused is said to have thrown away the wooden ram and armed himself with an axe. It is alleged accused entered the bedroom where he struck the now deceased on the head with an axe resulting in her death. The accused is said to have fled from the scene and was only arrested 3 days later on 11 July 2017 in Mushawasha East, Masvingo.

In his defence outline the accused raises the partial defence of provocation and offers a limited plea to the lesser charge of culpable homicide.

The accused in his defence outline pointed out that he is partially blind. He said he had been cohabiting with the now deceased since 2014. The accused said he had a long outstanding dispute with the now deceased which dispute worsened on 6 July 2017 and on the fateful day 8 July 2017. In explaining this dispute, the accused said the now deceased was now always in the company of her friend Maidei Pomerai which association the accused did not approve. The accused said the now deceased and Maidei Pomerai would just leave without accused knowing where they would have gone. The now deceased, according to the accused, was now saying she wanted to terminate their love relationship and that the accused was supposed to leave her residence. Accused said it is this which caused them to go to police at Renco Mine to seek police counselling.

The accused said on the fateful day 8 July 2017 the now deceased raised this matter again insulting the accused that she had wasted her time loving a blind person, and insisting that the accused should leave her residence immediately. The accused said it is the cumulative effect of these long outstanding disputes which caused him to assault the now deceased. He said in the heat of the moment he temporarily lost his senses and attacked the now deceased.

The accused does not dispute the manner in which the state alleges he attacked the now deceased. All the accused disputes is that he had the intention to kill the now deceased on the basis that the cumulative effect of long outstanding domestic disputes provoked him and also due to the mockery related to his disability.

In his confirmed warned and cautioned statement Exhibit 2 the accused gave a somewhat different explanation. In addition to the allegation that the now deceased ordered him to leave her residence immediately and that she had wasted her time loving a blind person, the accused said they had a misunderstanding over the sharing of their property. The accused in that statement said it is these reasons which irked him and caused him to assault with now deceased with the wooden ram and the axe handle. Further, in that statement the accused blamed Maidei Pomerai for negatively influencing the now deceased thus destroying accused and the now deceased’s love relationship.

The wooden ram the accused used to assault the now deceased was produced as Exhibit 3. It is 45 cm long and weighs 850 g as per affidavit Exhibit 6(iii).

The axe blade (known in shona as beura) was produced as Exhibit 4. As per Exhibit 6(ii) it weighs 1.7 kg and is 11 cm long.

The axe handle tendered as Exhibit 5 is 66 cm long and weighs 750 g as per Exhibit 6(i).

The last Exhibit is Yolanda Hove’s statement which was produced to ostensibly augment her summary of evidence. The only discernible addition in that statement which is not covered in her summary of evidence is that she said accused alleged that Maidei Pomerai was interfering in accused’s relationship with the now deceased. That statement does not specify what was the long outstanding domestic dispute between accused and the now deceased. It also does not explain what precipitated the assault of the now deceased by the accused on that fateful day 8 July 2017.

The cause of the now deceased’s death is not contested. As per the post mortem report by Dr Zimbwa dated 10 July 2017 the following injuries were noted by the doctor on the 34-year-old now deceased.

bruises on the upper back

deep laceration on the occipital area which was about 6 cm in length exposing the bone, and

depressed skull fracture

The cause of death is severe head injury. Indeed, it can be inferred from those injuries that the person who inflicted them wanted to kill the now deceased or did foresee that death would result.

During the trial only Calvin Matoma for the state and the accused gave viva voce evidence. The evidence all the witnesses was admitted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07]. These include the evidence of Yolanda Hove, Sandra Hove, Jerina Maziofa, Last Zimbandi, Monica Mashozhera and Dr Zimbwa.

While we find their evidence not relevant to the issue to be resolved by the court will nonetheless summarise it for completeness of the proceedings.

As already said Dr Zimbwa is the one who examined the remains of the now deceased and compiled Exhibit 1 the post mortem report whose contents we have already dealt with.

Monica Mashozhera is a female police detail whose main role was to assist the investigating officer one Last Zimbandi.

The investigating officer is Last Zimbandi. He attended the scene of crime where he noted the following injuries on the now deceased being deep cut on the back of the head, bruises on upper back and bruises on arm and face. Thereafter he caused the post mortem to be done. The investigating officer recovered the weapons used to assault the now deceased specifically the hoe handle Exhibit 5 in the mountain on accused’s indications. Lastly he recorded the accused confirmed warned and cautioned statement.

Jerina Maziofa is a cousin to the now deceased. She was alerted to the now deceased’s death on 8 July 2017 and attended the scene where she noted the injuries inflicted on the now deceased.

Sandra Hove is the now deceased’s 7-year-old daughter and was a step daughter to the accused. On 8 July 2017 she heard the now deceased being assaulted and crying out for help. Thereafter she saw the accused leaving and upon checking on the now deceased she saw that the now deceased had been severely injured.

Yolanda Hove is the now deceased’s 14-year-old daughter and accused’s step daughter. We have already alluded to her evidence when we discussed her statement to the police which was tendered as Exhibit 7. In a nutshell she was at home when the accused attacked the now deceased.

We then turn to the viva voce evidence led from Calvin Matoma and the accused.

Calvin Matoma (Calvin)

Calvin was the now deceased’s village head and met the accused soon after this tragic incident on 8 July 2017. Upon greeting the accused, he said the accused retorted that he, the accused, had finished the job. Calvin said he inquired from the accused what job the accused meant and the accused said he was going to surrender himself to the police. The accused was holding an axe handle.

Calvin said he became suspicious and rushed to the now deceased’s homestead where he found the now deceased’s daughter Sandra present. Sandra immediately told him that the now deceased had died. Upon entering the bedroom Calvin said he found the now deceased lying in a pool of blood making last gasp breath. The now deceased then passed on and he alerted other villagers and the police.

Calvin said the accused as the now deceased’s live in boyfriend was doing all other chores expected of a husband like tilling the land. In fact, he said at one point the accused complained to him that the now deceased’s mother had asked the accused to do some work for her for a fee but did not pay him. He said when accused told Calvin that he, the accused, had been told to leave the now deceased’s homestead the accused was unamused saying he would kill the now deceased before his departure as he had not been paid.

Calvin explained the nature of the relations between the accused and the now deceased. He said the two were always fighting and at one point they came to him as the village head for counselling. The bone of contention according to Calvin was that the accused wanted the now deceased to go and stay at the accused’s home but the now deceased was unwilling. Infact, he said at one point the now deceased even went and dumped the child she had with the accused at accused’s home after which she returned to her maiden home. The accused blamed the now deceased’s friend Maidei Pomerai for negatively influencing the now deceased resulting in the strained relationship between the accused and the now deceased. The accused said it is Maidei Pomerai who was telling the now deceased to dump the accused and end their love affair.

Calvin said on the other hand the now deceased was saying she no longer loved the accused whom she said should leave her parents home for his home. The accused refused saying he had once left but the now deceased had invited him back.

Calvin said in his assessment both the now deceased and the accused were to blame for their strained relationship. His reasoning was that the now deceased did not want to go and stay at the home of a man she apparently loved. On the other hand, it was improper for the accused as a man to stay at his girlfriend’s home.

Calvin denied that the accused raised before him an issue of infidelity on the part of the now deceased. He denied that his uncle was in love with the now deceased when this was suggested to him in cross examination.

Calvin said the domestic disputes between the accused and the now deceased were long outstanding as the two would at times go to the police to seek counselling and would thereafter stay together. In his view this was a troubled union and he was therefore not surprised when the tragedy finally struck on 8 July 2017.

We assess Calvin to be a truthful witness. As the village head he was privy to the nature of the relationship between the accused and the now deceased. Indeed, his knowledge of how he two lived together is limited as he did not reside at the same homestead with them. His assessment is based from what he saw from a distance and when the two came to him for counselling in his capacity as the village head.

He gave a fair assessment of the nature of the relationship between the accused and the now deceased without any bias. We therefore have no reason not to accept his evidence. We however note that he too was unhelpful as regards the cause of the tragedy on the fateful day being 8 July 2017.

The accused

The sum total of the accused’s evidence is that he has not been consistent in a number of respects.

It is clearly not true that he is blind as he alleged in his defence outline. The truth is that he simply has some eye sight problems. The issue of blindness is therefore an exaggeration. The other aspect to note it that the accused has not been consistent as to the source of the dispute between him and the now deceased. He seemed to give various explanations as the trial progressed. The accused raised new issues which are not part of his confirmed warned and cautioned statement or defence outline. The impression we ultimately got is that these new issues raised were possibly as a result of an afterthought. A few examples will drive the point home;

In explaining what sparked the dispute on 8 July 2017 the accused said this started on 6 July 2017 when Maidei Pomerai came and took the now deceased away. He said the now deceased did not sleep at home that day and upon her return accused asked her where she had been. In response the accused said the now deceased arrogantly told him that she had spent the night with another man. This narrative is not pay of the accused’s confirmed warned and cautioned statement or his defence outline. Surely accused could not have omitted to mention such a critical issue which touched the core of his relationship with the now deceased and ultimately provoked him.

In his evidence the accused said prior to incident on the day in question he, the accused, had been assaulted by an uncle to the village head who claimed to be the now deceased’s boyfriend. The accused he had to flee and this said uncle spent the night with the now deceased. Again this is not part of accused’s warned and cautioned statement or his defence outline. We find no plausible reason why the accused would have failed to raise such an incident which would clearly show the infidelity of his live in girlfriend the now deceased.

According to the accused what triggered the tragic events of 8 July 2017 is that the accused had agreed as per now deceased’s request to go to ZRP Renco to discuss the issue of the now deceased’s passport which the now deceased always alleged the accused had hidden. The issue of a dispute centred around the now deceased’s passport does not form part of accused’ confirmed warned and cautioned statement or his defence outline. Surely if this is what had happened and triggered the tragic events of 8 July 2017 the accused would not have failed to mention it earlier on in his statement to the police or in his defence outline at the commencement of the trial.

The accused said just before he attacked the now deceased on 8 July 2017 he had asked the now deceased to give him some water to bath but the now deceased had refused. The accused said it was when he insisted demanding water to bath the now deceased then shouted at him saying she had wasted her time staying with a blind person. The accused said this precipitated his attack of the now deceased. Again the issue of bath water is an issue belatedly raised by the accused late in the trial.

The accused’s version of how he attacked the now deceased is now even somewhat different. All along the accused said he did not dispute the version given by the state. However, in his evidence, late in the trial, the accused said the now deceased was the aggressor as she first attacked the accused by throwing iron at him after which the accused proceeded to hit her back. The issue of the iron is again another late addition to the accused’s evidence which sprouted later in the course of the trial.

While the accused was very clear in explaining how he was allegedly provoked on 8 July 2017 up to the point he attacked the now deceased, he raised amnesia on the critical aspect on how he attacked the now deceased. He said he absolutely had no recollection of how he assaulted the now deceased, that is the number of blows, where he directed the blows or the injuries he inflicted. All he said is that he only recalled using a wooden ram and an axe handle. Curiously he was adamant that he did not use the axe blade but the axe handle. Somehow he also recalled where he collected the axe and that he left the homestead with the axe handle, and where he hid the axe handle and why. This selective recollection of events by the accused is simply designed to fit in his scheme of things that he had apparently lost self-control. The question is why would he fail to recall relevant and incriminating aspects of his conduct and recall those which are exculpatory.

To cap it all the accused said what also provoked him on that day was that the now deceased said their daughter Faith was not sired by the accused. Again this is a new allegation which accused did not raise in his warned and cautioned statement or defence outline. We do not believe accused would have forgotten to raise the issue of the paternity of their child with the now deceased if indeed the now deceased had uttered such words.

The court even sought clarity from the accused on what exactly was the long outstanding dispute between him and the now deceased. The answer by the accused further muddled the waters as he said the issue was that he wanted to marry another wife as the now deceased was refusing to go and stay with him at accused’s home and that the now deceased had proceeded to harass accused’s new girlfriend.

To be fair to the accused he was indeed a very poor witness. He dismally failed to put his finger on what should have been a very simple question of the cause or causes of problems between him and the now deceased. As already demonstrated the accused was not consistent. He seemed to pick out any issue which came to his mind as the trial progressed. This severely dents his credibility on the material issue that he was as a fact provoked to such an extent that the partial defence of provocation is available to him.

The law

As provided for in s 239 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] if the defence of provocation is successfully proved is only a partial defence to the crime of murder. It is not a complete defence. Public policy demands that people should be able to reign in their temper even provoked and not to resort to such conduct leading to the loss of life. This informs why an accused person who shows that he or she was provoked remain accountable for his or her conduct to the extent that the court should return a permissible verdict of culpable homicide where death has resulted.

Section 239 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] provides as follows;

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 forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation –

he or she does not have the intention or realisation referred to in section forty-seven; or

he or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that -

he or she did have the intention or realisation referred to in section forty-seven; or

the provocation was not sufficient to make a reasonable person in the accused’s position and circumstances lose his or her self-control;

the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

In the book A Guide to Criminal Law in Zimbabwe the celebrated author G. Feltoe at pp 29, 3rd Edition 2004 discussed in much detail how the courts in Zimbabwe should treat the defence of provocation in murder cases. The fact remains that in our law provocation if proved is a partial and not complete defence to the crime of murder.

In practical terms the court applies a two staged approach.

The first stage is a subjective test in which the court puts itself in the shoes of the accused and proceed to ask whether the accused person had the requisite intention to kill, whether actual or constructive. If the answer is in the negative the accused can only be guilty of a lesser offence of culpable homicide. If, however the accused had actual or constructive intent to kill the court then moves to the second stage and apply the objective test which is whether the provocation was of such a degree that a reasonable person in accused’s shoes would act in the same manner. If indeed the answer is in the affirmative the court would find accused guilty of a lesser charge of culpable homicide.

In relation to the first rung dealing with whether the accused had the requisite actual or constructive intent the court would look at the nature of the alleged provocation itself and how it subjectively affected the accused to think properly or rationally. If it vitiates such an intention to kill, then the court should return a permissible verdict of culpable homicide.

As regards the second rung the approach is that the accused would have the intention to kill but would have lost control due to provocation. What the court therefore examines is the extent of such provocation and answer the question of whether a reasonable person in the accused’s circumstances would lose self-control and act in the manner accused did. It should be shown that that the accused lost control and that his conduct falls within the realm of what a reasonable person in his position would do. The most quoted examples are situations where one finds a spouse it the act of committing adultery or a child being sexually molested etc..

In applying the law to the facts of this case it is clear that the accused fatally assaulted the now deceased with the wooden ram and the hoe handle (as he says). The actus reus is therefore not in issue but proved. It is this assault which is the proximate cause of the now deceased’s death. What the accused failed to show is whether he is relying on s 239(1)(a) or s 239(1)(b) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] which provisions are not conjunctive but disjunctive. This is clear from the accused’s evidence which we have fully analysed. Mr Mupoperi for the accused in paragraph 3.2 of his written closing submissions failed to succinctly deal with this aspect. Instead the accused seems to have raised both provisions in the alternative and leave the court to decide.

In our assessment there is nothing to suggest that the accused had no intention to kill, whether actual or constructive intent. It can be inferred from the manner he battered his defenceless live in girlfriend that he wanted to kill her. The next question is whether he was indeed provoked to such an extent that he lost self-control and acted in the same manner a reasonable person in his position and circumstances would lose self-control and behave. Our answer is clearly in the negative. We make this finding on the basis of the accused’s complete failure to explain what exactly provoked him and induced such loss of self-control. The accused has been inconsistent and vague to such an extent that he cannot be believed.

Consequently, the partial defence of provocation is not available to the accused. The nature of the various aspects of provocation raised by the accused are at most mitigatory.

Accordingly, the accused is found guilty of murder with actual intent.

VERDICT: Guilty of contravening section 47(1)(a) Criminal Law (Codification and Reform) Act, [Cap 9:23] – murder with actual intent.

SENTENCE

In assessing the appropriate sentence, we shall consider both the mitigatory and aggravating factors in your case.

It is saddening to note that cases of domestic violence leading to loss of life are becoming very prevalent. A lot of spouses are losing their lives at the hands of those who are supposed not only to protect them but to love them.

It is aggravating that you brutally attacked your live in girlfriend who was the mother of your child. You did this in the full glare of your step daughters who are very young. They were obviously traumatised by such an experience which may linger in their minds for a very long time.

The manner in which you attacked the now deceased was very cruel. This was a defenceless woman who could not meaningfully fight you. You decided to assault her indiscriminately with both a wooden ram and an axe handle. You even directed the blows on to her head thus causing a deep laceration exposing the bones and a fractured skull. Thereafter you did not offer her any help but left her to die. When you met the village head you had the temerity to boast that you had accomplished your mission or what you said is your “job”. Indeed, you were not contrite at all even soon after committing this offence or during the course of the trial.

It should be made clear to you that human blood is sacred. You had no right to cruelly take away the life of this woman who did not only love you but gave you sanctuary. She was the mother of your child. Her children are now without their mother and the burden to look after them would rest on other people. We should therefore descend upon you in a very harsh manner.

We have however not lost sight of the factors in your favour which have been lucidly outlined by your counsel. You are a 36-year-old first offender with two children who survived on your manual labour as you are not employed. You are of no means at all.

It is mitigatory that you suffered pre-trial incarceration for about 8 months. Indeed, you have eye problems although you are not blind as you tried to portray to the court.

We are aware that you assisted in curtailing the proceedings in this matter by not putting in issue the testimony of most of the state witnesses including your two step daughters. These young children have been saved the trauma of testifying thereby reliving the saddening incident they witnessed.

We shall consider provocation in this matter as a mitigatory factor even though you were not very specific on what exactly provoked you. What is clear is that your relationship with the now deceased was a turbulent one. You shall forever live with the fact that you took the life of the mother of your child. It is important as we said in our reasons for judgment that people should learn to control their temper even under extreme provocation.

After considering both the mitigatory and aggravating factors in this case the following sentence would meet the justice of this case;

You are sentenced to 30 years imprisonment.

SENTENCE : 30 years imprisonment

National Prosecuting Authority, counsel for the state

Saratoga Makausi Law Chambers, pro deo counsel for the accused.