The State v Ester Tambara

### Preamble
1
HMT 44-20
CRB 27/20
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THE STATE

versus

ESTER TAMBARA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 26 May 2020, 27 May 2020, 28 May 2020 and 8 July 2020

Criminal Trial

ASSESORS:	1. Mr Chipere

2. Mr Raja

J Chingwinyiso, for the State

NS Nyamwanza, for the accused

MWAYERA J: The accused was charged with murder in that on 21 October 2018 and at Kanyimo Village Chief Katerere, Ruwangwe, Nyanga, the accused in the company of Albert Tambara and Kudzanai Tambara who are late and on the run respectively, unlawfully caused the death of Godfrey Kanyoka by striking him with sticks all over the body intending to cause his death or realising that there was real risk or possibility that their conduct might cause the death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Godfrey Kanyoka died. The accused pleaded not guilty to the charge.

The brief summary of the state case is that the deceased sent the accused his wife to her parents’ home after giving the accused a token of rejection symbolising the end of their marriage. The accused and her two brothers returned to the deceased’s parents’ homestead demanding to know why the deceased had rejected the accused. They further demanded for lobola since accused and deceased had been husband and wife for about 13 years and no lobola had been paid. The deceased’s response to the demands did not go well with the accused’s brothers who then started to assault the deceased. The accused is said to have joined in with her brothers in assaulting the deceased culminating in the later sustaining injuries from which he died.

The issue that falls for determination in this case is whether or not accused acting with common purpose and concert assaulted the deceased thereby unlawfully an intentionally causing his death.

The accused’s defence was that she did not assault the deceased in any manner. She denied having associated or participated in the assault perpetrated on the deceased by the brothers following a perceived rude response to their demand for lobola. The accused’s defence outline tallied with her confirmed warned and cautioned statement tendered as exh 2 by consent and the same version was maintained in evidence in chief.

The state relied on evidence of 12 witnesses 9 of whom had evidence formerly admitted as it was evidence of common cause aspects. It is not in dispute that the accused’s brothers fell out with the deceased when they made demands for lobola and the deceased retorted he would only discuss such matters with their father. It is also common cause after physical combat the deceased sustained injuries, was ferried to hospital and later passed on. The police details attended the scene of crime and carried out investigations and drew a sketch plan. In line with the common cause aspects the following exhibits were tendered. The post-mortem report by Dr M Katiro, exh 1 by consent. The doctor observed a swollen head, red eyes and bruises on face and concluded cause of death was head injury. The accused’s confirmed warned and cautioned statement detailing how her brothers and Christine Nyakuba struck the deceased tendered was marked exh 2 by consent. The sketch plan depicting the general lay out of the scene exh 3 by consent. The sticks and certificate of weight exh 4 and 4 (a) respectively.

Christine Nyakuba the mother of the deceased gave oral evidence. She narrated how the accused came with her brothers and she remained behind at the witness’ request since the husband was not at home. On the fateful day the accused’s brothers came demanding lobola which prompted the witness to invite one Charles Mupunura to act as a go between. After presentation of demands for lobola the deceased replied that they would settle lobola after the in laws resolved social problems bedevilling their daughter the accused. According to the witness this infuriated Albert Tambara who went outside and returned armed with a stick. Further according to the witness after Albert struck the deceased he fell down and it was while down that accused struck him 3 times. She disarmed accused who took another stick from a fowl run and continued to assault the deceased on the head. The brothers Albert and Kudzanai joined in. The witness’s version was not only hard to believe but incredulous as she sought in an exaggerated manner to place the accused as the main perpetrator of the assault. This is moreso when one considers the issue of lobola was between the deceased and her brothers. The brothers were angry and assaulted the deceased there was no indication that the deceased was over powering the brothers which would prompt the accused to go on a rampage of assaulting her husband with stick being disarmed and collecting yet another stick. The witness was physically involved in a fight with the accused’s brothers. She confirmed accused’s version that there was use of a brick although she said she blocked the brick thrown by Kudzanai Tambara. It is our considered view the possibility of the brick accidentally landing on deceased from her blocking is very practical. This goes a long way in fortifying accused’s version. The witness despite efforts to chase away the accused could not remove the fact that the accused remained in attendance trying to assist her injured husband. Generally the witness appeared deliberately bent on misleading the court on the actual perpetration of assault and participation for the obvious reason that the accused’s brothers who had issues with the deceased are late and at large respectively. The witness’s account of social problems bedevilling the accused was not straight forward. She appeared desirous of laying bare without detail and elaboration that the accused had been betrothed to a spirit before marriage thus causing deaths of her children. On being requested to explain how the other 2 children in her custody survived she was quick to point out that all was not well as the older of the children at times gets possessed an indication that the mother is somebody else’s wife. Generally the witness did not strike us a genuine witness. It is understandable she lost her child at the hands of the accused’s brothers but the acts and omissions of the brothers cannot just be shifted to the accused. In so far as the witness sought to attribute the assault of deceased by accused as the main perpetrator we did not rely on the witness’s version. She was generally not a credible witness.

Leonard Kanyoka the father of the deceased also gave oral evidence. His account of events of the day in question tallied to a great extent on material aspects with the evidence of the accused. The witness narrated that the accused’s brothers were not happy with the response given to their claim for lobola. The brother Albert Tambara went out and came back armed with a stick. He struck the deceased and there was commotion as the brothers teamed up to assault the deceased. The witness’s efforts to restrain were futile as he was struck by Kudzanai Tambara and lost consciousness. He thereafter did not witness what happened and only regained consciousness when the deceased had been ferried to hospital. The witness gave evidence in a satisfactory manner.

The last state witness Charles Mupunura who was invited as a mediator also testified. The witness conveyed the accused’s brother’s lobola demands to which deceased pointed out that he was not prepared to discuss in the absence of the inlaws’ parents. This provoked Albert who went outside and came back armed with a stick which he used to strike the deceased. The two brothers both armed themselves to assault the deceased. The witness pointed out that there was commotion. He pointed out that the accused also assaulted the deceased but was none committal on how and where she aimed the assaults. He just pointed out that she also used a stick to assault when the deceased was on the ground. On being taken to task during cross examination the witness mentioned that the situation was volatile and that soon after exiting when Leonard Kanyoka had been struck on the head the witness escaped. The witness who appeared excitable only come back after enlisting of services of a vehicle to ferry the deceased to the hospital. The witness impressed us as one who did not take time to observe the details of the fight as he was fearing for himself. Other than saying accused assaulted with a stick no details or elaboration of the assault was given. In fact the witness was not consistent on this assertion. The witness was generally not reliable on the detail of assault. In fact he is the only one who referred to Albert Tambara having struck the deceased on the head with a brick while all the other witnesses mentioned use of sticks. The witness fled immediately upon existing when both deceased and his father had been struck such that we wondered at what stage then he witnessed accused join in. The witness appeared to be including the accused in the assault simply because she was a sister to the brothers who were involved in an alteration with the deceased.

The accused was the only witness in the defence case. According to the accused the deceased died as a result of the assault perpetrated during the commotion pursuant to demand for lobola. She was firm that her brothers her mother in law Christina Nyakubva and father in law were involved in the physical fight. Her brother’s struck deceased using sticks and when the mother in-law Christina Nyakuba picked a brick aiming at Albert Tambara she missed and struck the deceased her son on the head. The accused ascribed the death of the deceased to the assaults perpetrated by her brothers and her mother in law. It is worth mentioning that the accused was consistent in her narration of events of the day in question despite being pierced during cross examination over her miscarriages, still birth and loss of children at or just after birth. She was forthright and impressed that court as a candid witness. In fact it emanated during the somewhat excruciating cross-examination that the accused was a victim of childhood marriage when she was bludgeoned by the mother in law even to the extent of not being medically attended to but giving birth at home in the 21st century. She religiously followed the mother in law’s gospel even on the day she came back with her brothers and the husband was not at home the mother in law directed her to stay behind and she obliged. The accused as a witness was candid. She clearly had no vendetta against the witness Christine as sought unsuccessfully to be exposed by the state counsel. The witness was truthful. If she wanted to fix the mother in law she would not have qualified her evidence that the mother in law hit the deceased her son by mistake when the blow was aimed at her brother. She again in a clear display of geniuses did not seek to hide the attack at her late husband and his father by her brothers. Even after the deceased was injured she remained in attendance to assist. Such consistence goes a long way in laying bare the witness’ truthfulness. We generally found nothing to criticise about the manner the witness testified. The accused at the time of testifying was not in custody of her children and again having resigned to fate of childhood marriage and being a woman she did not register protest. From the manner she testified the children are at their home in a patriarchal society. The contradictions on the number and nature of blows by who to Leornard Kanyoka and Christina Nyakuba given the motion full and volatile event is nothing that can distort the common cause aspect that there was a commotion and that the deceased died as a result of injuries caused by assault. The accused’s evidence remained intact and we found no reason not to believe her credible narration of events of the day in question.

From all the evidence adduced it is clear that Albert and Kudzai Tambara assaulted the deceased. The court is left to speculate and semise on whether or not the accused participated in any manner. There is no evidence adduced to show that the accused was acting in common purpose and in consent with her brothers in assaulting the deceased.  The offence of murder charged the state has to prove beyond reasonable doubt that the accused acting with common purpose and in consent with the co-perpetrators unlawfully and intentionally murdered the deceased. The burden of proof lies on the state to prove the guilty of the accused beyond reasonable doubt. Section 18 (1) of The Criminal Law (Codification and Reform) Act [Chapter 9:23] instructive on degree and burden of proof in criminal cases it states

“subject to section (2), no person shall be held guilty of a crime in terms of this code or any other enactment unless each essential element of the crime is proved beyond reasonable doubt”

Once the accused’s explanation is reasonably possibly true then these accused ought to be acquitted.  See S v Makanyonga 1996 (2) ZLR 231 (H) RVM 1946 AD 1023 act. S v Kulper 2000 (1) ZLR where it was stated as follows:

“the test to be applied before the court rejects the explanation given by the accused person was set out by Greenbergs in R v Difford 1937 AD 370 when at 373 the judge said: “no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if the explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable but that beyond any reasonable doubt is false. If there is any reasonable possibility of his explanation being true then he is entitled to an acquittal.”

The accused has no onus to prove her innocence. In the absence of evidence linking the accused with the actions of her brothers in alleged commission of murder it cannot be concluded that the accused associated herself with the actions of the actual perpetrators. Section 196 A of The Criminal Law Codification Reform Act [Chapter 9:23] is apposite and clear as it connotes that if the doctrine of common purpose is to ascribe it is settled that were two or more people agree to commit a crime and actively associate in a joint unlawful enterprise each will be responsible for specific criminal conduct contributed by one or other of them which falls within their common design. See S v Bernard Makuchete and another HMA 10-18 S v Chauke and another 2002 (2) ZLR at 47 AD S v Samuel Chikwanda and another HH 575 /17. The common thread that runs in these cases is for co-perpetrators liability arises from common purpose to commit crime. In S v Samuel Chikwanda case (supra) Hungwe stressed the requirements that have to be met for common purpose to a scribe liability. When he stated at p 5

“to be a co-perpetrator the person must be physically present with the actual perpetrator when the actual perpetrator was committing the crime and must have knowingly associated with the crime committed. It is not necessary that there be a prior conspiracy with the actual perpetrator for a person to be guilty as a co-perpetrator. In other words the co-perpetrator runs common purpose with the actual perpetrator by joining in a crime before it is committed and without having conspired with the actual perpetrator in advance to commit the crime”.

In the present case the accused was at the homestead with her in-laws when her brothers came to find out about her rejection and further demand lobola for a sister who had been married for 13 years. The deceased on being asked for lobola provoked Albert and Kudzai Tambara who teamed up using sticks to assault the deceased. The attack on deceased by Albert was at the spur of the moment upon utterances that deceased would not talk to them about lobola since they were not parents but just children. Considering the circumstances one cannot deduce that the accused had knowledge of the criminal act which the brothers were going to perpetrate. The assault was not a pre-planned assault in anticipation of the response. There is no evidence that the accused joined in with common purpose to assault and murder the deceased. There are no manifestations of sharing common purpose to commit the crime with the actual assailants. If anything the accused dissociated herself from the actions of her brothers by not participating and by availing herself to help the deceased get medical attention. In the circumstances the accused cannot be held liable for murder or other charge emerging therefrom simply because she is a sister to her brothers who had a fall at with deceased. There is no nexus between the death of the deceased and accused’s mere presence at the scene.

Accordingly the accused is found not guilty and acquitted.

National Prosecuting Authority, state’s legal practitioners

Nyamwanza & Associates, accused’s legal practitioners