State v Richard Zongoro

### Preamble
1
HMT 72-19
CRB 38/19
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STATE

versus

RICHARD ZONGORO

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 12, 13, 18 and 24 September 2019 and 8 October 2019

Criminal Trial

ASSESORS:	1. Mr Chipere

2. Mr Mudzinge

M Musarurwa, the State

B Makuni, for the Accused

MWAYERA J: In a sad sibling rivalry over inherited pieces of land the deceased lost his life. The accused was arraigned before this court on a charge of murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The brief allegations are that on 26 January 2019 and at Hamudikuwanda ‘B’ Village headman Mandeya, Chief Mutasa Honde Valley the accused unlawfully caused the death of John Zongoro by striking him thrice on the head with an iron hoe handle intending to kill John Zongoro or realising that there was a risk or possibility that his conduct might cause death and continued in that conduct despite the risk or possibility resulting in severe injuries from which the said John Zongoro died. The remains were examined by Dr Aisa Jerrano Gomez who concluded that cause of death was brain damage, skull bone fracture and head injuries. A post-mortem report was tendered as exh 1 by consent.

The accused pleaded not guilty to the charge and he raised self-defence. The accused in his defence outline pointed out that when he assaulted the deceased, he was defending himself from the attack by deceased. According to the accused the deceased was armed with a catapult, sticks and a whip. He defended himself using a metal hoe handle which he had picked to scare off Mr Muranwi’s dogs as he had passed by that place earlier.

Evidence of state witness Wilfred Mubata, Edson Fenga, Jesca Refu, Timothy Musapatika, Daniel Mutasa, Mike Mike Chiradza, Admore Jokwiro, Jonathan Chinze, Thembeni Mucheki, Mutasa Payne Dzinotizei and Dr Aisa Jerrano Gomez was formerly admitted in terms of s 314 as it appears on the summary of state case. The witnesses’ evidence was on common cause aspects. It was apparent that the deceased and accused were brothers. It was also common cause that the brothers had a long standing dispute over pieces of land given to them by their late parents. Also not in dispute is the fact that the deceased obtained a peace order restraining and directing accused to keep peace towards him.

It was also established from evidence that the two brothers had an altercation which culminated in the fatal consequences. The altercation occurred at Fenga Village which is the Village where the deceased resided. It was clear the accused approached the village when the confrontation ensued not that deceased went to Hamudikuwanda Village where the accused resided. The body was retrieved from the scene where the two brothers had had confrontation in Fenga Village. The accused did not dispute going to Fenga Village neither did he dispute being involved in an altercation with the deceased his brother. His defence was basically that he assaulted the deceased in self-defence.

The issue that the court has to decide in this case is whether or not the accused was acting in self-defence such as to negate the intention to commit the offence of murder.  It is settled murder consists of both the actus reas and mens rea. Put differently what falls for determination is, given the defence of self-defence raised by the accused, did accused have the requisite intention to unlawfully cause the death of the deceased. It is important for all the evidence to be analysed in its totality in order to assess whether or not the defence of self-defence can be sustained.

The state adduced oral evidence from Abigail Dziko. The Witness narrated how on the fateful day the accused first approached their homestead shouting words to the effect that he would kill someone or set the huts on fire. According to the witness the accused, her husband’s brother momentarily disappeared. This was in the early morning hours around 0100 hours. After a while the accused again came back shouting the threats that he intended to kill someone and that he would throw or detonate a dynamite to kill someone failing which his mother would rise from the dead. The witness narrated how she tried in vain to stop her husband from going outside upon the second appearance and threats. According to the witness the deceased armed himself with a catapult insisting that if he did not go outside the deceased would bring to fruition his threats  and set the couple’s children on  fire. According to the uncontroverted evidence of the witness the animosity and friction between the two brothers was over the pieces of land. She stated that accused had disposed pieces of land he had inherited from the late parents and when he encroached or interfered with the deceased’s inherited pieces of land, the later sought a peace order. This stance of getting a peace order sparked off the altercation as it was the immediate cause of the struggle which ensued in the early morning hours of the fateful day. According to the witness when her husband who   was determined to confront the deceased went outside he locked the door from outside. He did not come back. At daybreak after the door was opened by her children she looked for her husband and was eventually called by the village head Edson Fenga who had been shown by Wilfred Mubato the body of the deceased lying in a maize field near the garden area. The witness’s evidence was fairly straightforward and she was not subjected to much meaningful cross-examination. Although she is a surviving spouse of the deceased she did not seek to hide information about the husband arming himself with a catapult as he insisted on facing the deceased. She impressed the court as a credible witness who was desirous of confining the testimony to only that which she knew. She did not   witness the actual physical combat as she was indoors and she did not seek to suggest how it occurred. She was a candid witness.

The accused in turn was the only witness in the defence case. He maintained what he stated in his confirmed warned and cautioned statement exh 2, that he struck  the deceased 3 times with a metal hoe on the head as  a way of defending himself or wading off an attack initiated on him by the deceased. The accused also adopted his defence outline as evidence in chief and maintained he was acting in self-defence. It was clear from the accused’s evidence just like that of the state witness Abigail Dziko that the acrimonious relationship was over inherited pieces of land. The accused was on the morning in question in Fenga Village where the deceased resided. He pointed out that the deceased was armed with a catapult, whip and sticks. During cross-examination he pointed out that he did not see the whip but just the catapult. The accused who was the only eye witness could not narrate how the scuffle ensued. However, he pointed out that he was struck with a stone from a catapult by the deceased and he sustained injuries which were observed by the state witness namely a cut on the forehead.

The accused as a witness was economical with detail yet he is the only eye witness to the altercation. We took that as  an indication of hiding  the truth from the court given the weapon the accused had visa vis  the catapult and presumably a stick as observed under and or near deceased’s body. The accused could not explain why he wielded a 2forked iron handle and struck the deceased on the head 3 times. The version of having the handle for purposes of scaring away Muranwi homestead dogs is not plausible. Firstly if the handle was for chasing dogs away why then was the accused still in possession of 1,86 kg hoe handle while just walking home. (Certificate of weight exh 4). Upon being interrogated the accused introduced yet another need to scare muggers away. During cross-examination the issue of the muggers was scuttled as the accused could not maintain it given he knew his brother who was not a mugger. Infact during the altercation he was not mistaken as to the identity of who he was striking. The accused sought to create the impression that when he left the scene the deceased chased after him. There is however no evidence to support such ability to pursue on the part of the deceased. Moreso when one considers the weapon used on the head an iron sharp edged or flaked hoe handle 3 times. If anything the accused’s conduct upon seeing his wife Jesca Refu and sister clearly points to the deceased having been fatally injured and accused was worried about what had transpired. The accused himself during cross-examination by the state conceded he made an error in striking the deceased in the manner he did thereby causing his brother to loose his life.

From the totality of the evidence before the court, it is apparent that the two brothers had friction over inherited pieces of land. One can assume the parents must be turning in their graves regretting the donation. The accused approached the deceased’s homestead during ungodly hours threatening to kill and detonate a dynamite in retaliation over a peace order sought at the magistrates’ court. The deceased went out armed with a catapult and latter maybe stick. The accused was armed with an iron hoe handle. The two brothers manhandled each other. The accused was struck with a stone from the catapult and maybe with stick as evidenced by injuries he sustained. From the sequence of events the accused was the aggressor. He confronted deceased in the dead of the night.   The struggle occurred outside campus at the garden on indications of pursuing each other. The accused struck deceased on the head 3 times. The defence of self raised requires all of the following elements to be fulfilled.

That there must be an unlawful attack  which commenced or is imminent

The accused’s conduct must be necessary to avert the attack.

The means used to avert the attack are reasonable in  all circumstances

That any harm or injury caused by his or her conduct was caused on the attacker and was not grossly disproportionate.

The wording of s 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides for self-defence as a complete defence is clear as all the requirements have to be met. See S v SibandaHB 139/18 and S v Tafirei Runesu HMA 37/17.  The accused was the aggressor and he unlawfully attacked the deceased by threats of death whilst armed with an iron hoe handle. The deceased sought to defend himself and his family by getting out armed with a catapult. Even if it is accepted that in wading off the accused the deceased caused injuries the dislocation of the arm and cut caused by the stone, the conduct of the accused of striking the deceased 3 times on the head with a forked metal hoe handle was grossly disproportionate to the attack he suggests he sought to wade off. The means used in the circumstances were unreasonable. It is the accused who approached provoking an unlawful attack. When the deceased came out the accused could have made good his escape for surely if he was shot by a stone from the catapult this was at a distance he could have averted the attack by escaping as opposed  to getting closed for physical combat and striking the head three times. In the circumstances of this case given the accused  was the attacker and that the deceased is the one who was defending himself the accused cannot even begin to motivate the defence of self. Even if the deceased in defending himself engaged in conduct of physically striking with a stone propelled from a catapult the assault on the head with a hoe handle was unreasonable and disproportionate. The self defence argument cannot hold as all requirements as envisaged by the law have not been met.

In this case it is the accused who set out to attack the deceased. Were it not for the fact that the deceased sought to defend himself then the chain of premeditated attack would not have been broken. The accused was still not deterred as he persisted with the dangerous weapon to strike the deceased on a vulnerable part of the body thereby causing injuries from which the deceased died. The intention to kill can be inferred from the circumstances of the case. What falls for consideration in determining intentions is the nature of weapon and the body part to which the attack or blow is directed and the intensity of the attack. See S v Kurongra HH 267/17 and S v Mema HB 143/13.

In this case we find that the accused realised the real risk or possibility that his conduct of approaching and attacking the deceased with a double forked iron hoe handle would cause death but despite the realisation of that risk or possibility he continued to engage in that conduct.

The accused is accordingly found guilty of murder with constructive intention as defined in s 47 (1) (b) of the Criminal Code.

Sentence

Murder is a prevalent and serious offence which calls for deterrence. Courts have to show their disdain of unlawfully killing of another by passing appropriate sentence.

In passing sentence we have considered all mitigatory and aggravatory factors submitted by Mr Makuni and Mr Musarurwa respectively. The accused is a first offender, family man with fairly heavy responsibilities as his wife and children are dependent on him. The accused regrets commission of the offence as even during trial under cross-examination he admitted he erred in the manner in which he fatally assaulted his brother. The court is alive to the fact that the accused will live with the trauma and stigma of having killed his brother. That he has not been convicted of murder with actual intention but with legal intention is not known in the community at large as these are legal niceties. He will forever be labelled as a murderer. We have also taken note of the fact that accused was out of custody throughout trial and he religiously availed himself showing regret of the murder and desire to have matter prosecuted to its logical conclusion which is in keeping with societal interests and interests of administration of justice.

However as correctly stated by the state counsel Mr Musarurwa one can never be applauded or given a pat on the back for killing another. No one has the right to take away the God given and constitutionally enshrined right to life. The deceased died at a tender age of 38 leaving his wife and children with no bread winner. What further aggravates this offence is, this is a domestic violence related murder where a brother caused death of the other brother. Fighting over inheritance with fatal consequences is frowned at by the courts as it is a clear indication of greed and laziness. The accused as the elder brother was reckless and irresponsible. In fact the manner in which he struck his brother using a metal forked iron hoe with severe force is callus. He struck his brother in a brutal manner showing no respect at all for blood relatives and human life. The deceased sustained brain damage, skull fracture, head injuries and other multiple injuries as observed on the post-mortem report.

We are alive to sentencing principles of having to match the offence to the offender while at the same time tempering justice with mercy. We are further alive to the fact that the accused has to be given a chance to reflect on his conduct and be a better citizen in a progressive community.

It is with all these factors in mind and the fact that accused has been convicted of murder with constructive intention that we feel an imprisonment term is appropriate.

18 years imprisonment.

National Prosecuting Authority, State’s legal practitioners

Henning Lock, accused’s legal practitioners