The State v Allan Zhaka

### Preamble
1
HMT 69 -20
CRB 31/20
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THE STATE

versus

ALLEN ZHAKA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 8 and 30 September 2020

Criminal Trial

ASSESORS:	1. Mr Chipere

2. Mrs Mawoneke

M Musarurwa, for the State

T Kanengoni, for the accused

MWAYERA J: The accused who was aged 20 at the time of the allegations was arraigned before the 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 allegations are that on 20 September 2019 and at New Stands, Destiny 2, Lot 1, Dora Farm, Dangamvura, Mutare the accused person unlawfully caused the death of Tambudzai Mashayamombe by assaulting her on the head with fists or some unknown object intending to kill her or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Tambudzai Mashayamombe died. The accused pleaded not guilty to the charge.

The accused’s defence outline which he later adopted as evidence in-chief was basically to the effect that he had no intention to kill the deceased. The accused fell out with the deceased his girlfriend when he expressed intentions to leave her. They had a brawl over property and money which the accused wanted to take away with him. The deceased manhandled the accused who then in a fit of rage retaliated and struck the deceased with fists twice on the upper bosom and just below the ear. The deceased fell unconscious and accused left the room.

The brief allegations according to the state are that the accused assaulted the deceased on the head and she sustained serious injuries from which she died on the spot. The accused covered the deceased’s body and took away with him a 12 volt battery, a converter, 1 plasma television set, 1 solar panel a cell phone and an econet line belonging to the deceased.

The state adduced evidence from 14 witnesses, 2 of whom gave oral evidence while the other 12’s evidence was formerly admitted as it appears on summary of state case in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Allan Manyandure gave viva voce evidence. He in summary outlined how he proceeded to the scene where he had to use an iron bar to destroy the locking device so as to gain entry into the room in which the deceased was covered by a blanket and under a mosquito net. The witness was together with the other witnesses who had gathered. Upon realising that the body was bleeding from the nose and lifeless he, in the company of Lewis Simango and others alerted the police. The witness told the court that the police officers attended the scene and ferried the body to the mortuary. He, just like other witnesses also made indications to the police who then came up with a sketch plan exh 3. We found nothing to criticise about the manner the witness testified. His evidence was truthful and straightforward. He only attended the scene upon being invited by Magret Kasai who had observed that the deceased’s children were alone at home.

The second witness who gave oral evidence is Henry Tuso the investigating officer. He recounted how he attended the scene of crime with his team. The witness confirmed Allan Manyandure’s evidence that the body was bleeding from the nose and that the locking device had been broken from outside. The witness caused the body to be ferried to Mutare Provincial Hospital mortuary. He drew a sketch plan exh 3 following indications by the witnesses and accused. The sketch plan was tendered as an exhibit before the court by consent. From his investigations, he gathered that the accused had spent the night in the room with the deceased and that towards day break that is when he assaulted the deceased and made good his escape with a solar panel, converter, television set, cell phone and cell phone line. Upon making follow ups he arrested the accused and recovered from the accused the key to the padlock which had been used to lock deceased’s inside. He also recovered the television set, cell phone, cell phone line, solar panel, invertor and battery. According to the witness, the accused cooperated and the investigating team recorded a confirmed warned and cautioned statement which was tendered as exh 2 by consent. The witness further recorded indications which were made by accused and these were tendered as exh 2 (a) by consent. It was apparent from the indications and confirmed warned and cautioned statement that the deceased and accused had an argument over property and money which then culminated in accused striking the deceased with fists on the left side of the neck and below the left ear. The witness gave his evidence well. He was highly credible and did not seek to exaggerate his version. For instance when asked to comment on the possibility of the accused having a duplicate key to the room he confirmed the possibility since the two were staying together. Generally the witness was credible and he carried out his investigations well.

The rest of the state witnesses’ evidence was on common cause aspects and was formerly admitted. Enniah Mwashita’s evidence was to the effect that accused and deceased were together on 20 September. She gave them some chips and $15-00 to hand over to Margret Kasai her mother. Margret Kasai confirmed having gone to collect the parcel at deceased’s place on the morning of 21 September 2019. The witness’ admitted evidence shows that she found the deceased’s bedroom door locked from outside. The children were alone at the home in their room. The witness then alerted Betty Nerwande and Lewis Simango who then opened the door by breaking the locking device. They found deceased’s body on the bed covered with a blanket and under a mosquito net. The witness together with Lewis Simango, Allan Manyandure, and Abigail Ferume a sister to the deceased proceeded to lodge a report with Dangamvura Police Station. This prompted the police details Sergeant Elizaberth Gwarimbo and Constable Taison Munhungei to attend the scene of crime. The police details’ evidence confirmed the other witnesses’ evidence on the position of the body. Also formerly admitted is evidence of Biggie Takwanisa a son to the deceased. His evidence was clear that on the night in question the deceased and accused argued over how to spend money and that the following morning he learnt of his mother’s death and discovered accused had gone with the property as outlined by other witnesses. Worth noting also is the evidence of Dr Zvidzai who examined the remains of deceased and concluded that cause of death was head injury. The doctor compiled a post mortem report which was tendered as exh 1 by consent.

The accused was the only witness in the defence case. He was consistent that he punched the deceased below the ear and on the neck. His defence outline which he adopted as evidence in chief to large extent tallied with his confirmed warned and cautioned statement. He maintained that he had no intention to cause the death of the deceased. He admitted that the argument about money and property culminated in the squabble which had fatal consequences. Although initially accused seemed to create the impression that he was not aware deceased had passed after he assaulted her during cross examination in the defence case he admitted that after he punched the deceased she passed on. He panicked and locked her in taking the property away. The taking away of property after the fatal blow goes a long way in showing the motive. He was hammered much on the property which he took but theft of deceased’s property was not a matter before the court. Further it could not be strictly said the two living in boyfriend and girlfriend did not acquire property together. What is clear however, is that even if the accused had a genuine claim to some or all of the property that does not amount to a defence for assaulting the deceased in the manner he did. The accused was none committal on how the deceased assaulted him at all if she ever did. In his confirmed warned and cautioned statement he said she slapped him once and in evidence in chief he said she manhandled him. This exposed the accused as having violently assaulted deceased on the head over property issues. The accused was not prepared to be frustrated in his desire to get the property.

It is apparent from the totality of the evidence that the following factors are common cause:

That deceased and accused were live in partners.

That the accused assaulted the deceased with clenched fists and deceased died on the spot.

That cause of death was head injury.

The only issue that the court has to decide is whether or not when the accused assaulted the deceased he had an intention, actual or legal to cause the death. It is clear the charge of murder the accused is facing requires both the unlawful act (actus reas) and intention (mens rea) to bring about the death.

In this case there is no direct evidence that the accused set out with an aim to kill the deceased and proceeded to achieve his desire. There is no evidence that when he struck the deceased it was substantially certain death would occur. See S v Mungwanda SC 19/2002 in which actual intention was fully explained. In the present case there is no evince to show and prove actual intention. Now turning to dolus eventualis this is intention which can be inferred from the circumstances of the case. The question is was it foreseeable that by assaulting the deceased in the head with clenched fists death would occur. Put differently the question is whether or not accused foresaw a risk of death occurring but nonetheless continued to act reckless without paying regard to whether or not the risk eventuated. A close look at accused’s testimony reveals that the defence of provocation sought to be stressed in closing submissions does not exonerate the foresight on the part of the accused. The accused was economical on details pertaining to provocation. The two just had an argument over sharing property and that cannot amount to provocation vitiating legal intention or foresight that by striking the deceased with clenched fists in the neck and on or just below the ear death would occur. In fact the accused in evidence in chief and to an extent in his confirmed warned and cautioned statement pointed out he continued to throw blows recklessly without paying regard to the consequences. All he wanted was to get the property and this was despite the realisation of the risk.  After deceased fell to the ground, motionless and bled the accused actually covered the body and locked it up in the room before he departed with the household property.

It is apparent in this case that the deceased died as a result of blows inflicted on a vulnerable part of the body by the accused. In circumstances where one proceeds to cause death with realisation that their conduct has the risk or possibility of causing death and notwithstanding proceeds with the act as happened in this case one cannot escape liability for murder with legal intention. See S v Mhako ZLR (2) 73. In the present case we find that accused realised the real risk or possibility of his conduct of striking the deceased in the head might result in death, and despite the realisation he continued with his conduct thereby causing the deceased’s death.

Accordingly the accused is found guilty of murder with legal intention as defined in s 47 (1) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

SENTENCE

In reaching at an appropriate sentence we have considered all mitigatory and aggravatory factors submitted by Mr Kanengoni and Mrs Matsikidze respectively. The accused is a first offender who cooperated with law enforcement agency during investigations of the matter. As correctly emphasised by Mr Kanengoni the accused is a youthful offender who committed the offence at the age of 20. He is an immature adult who, because of youthfulness cannot be an exception to being highly susceptible to outside influence. In this case the accused was in a relationship with a woman 11 years older than him. We appreciate he has freedom of association and he made a choice but we cannot ignore the possibility of overriding influence by the older lover. Again as evidence of being prone to succumb to outside influence the desire to move out was occasioned by family pressure from accused’s brother who advised accused to come back home as parents did not know where he was staying. These circumstances go a long way in showing that youthfulness had a bearing on the manner the accused carried himself on the day in question. After assaulting and killing he locked the body indoors and took property away with him. Also mitigatory is the fact that the accused has been in custody for about a year awaiting finalisation of the matter. That he killed his live-in girlfriend is stigma that will attach to him all his life. Further in mitigation is the fact that accused cooperated with law enforcement agency and even during his trial he exhibited that he regretted what transpired.

However, in aggravation as correctly observed and stressed by the state counsel Mrs Matsikidze this is a gender based domestic violence. The accused recklessly delivered blows to the deceased’s head causing her death. The manner in which he went on to lock the deceased’s body in and take property was clear display of carefree attitude on a fellow human being’s life. He valued property more than the life of a woman he was staying with. The accused acted in an inhuman manner. Further in aggravation is the fact that the dispute over property was one which could be resolved amicably but accused turned to physical prowess and despite the realisation of the risk or possibility of death occurring he thudded the deceased on the head. Courts and indeed the legislature have expressed revulsion of domestic violence for the obvious reason that in most cases it ends up with ghastly and fatal consequences as occurred in this case. The deceased unnecessarily lost her precious God given right to life which is a constitutionally enshrined in the Zimbabwean Constitution. Further in aggravation is the fact that the deceased’s two minor children have been robbed of their mother and bread winner because of accused’s conduct. The offence is deserving of a custodial term.

We are persuaded to deliver a short prison term considering the highly mitigatory factor of youthfulness on the part of the accused.

Sentence : 12 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Matsika Legal Practitioners, accused’s legal practitioners