THE State V Mirriam Kufandada

### Preamble
1
HMT 66-19
CRB 12/19
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THE STATE

versus

MIRRIAM KUFANDADA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 17 and 25 September 2019

ASSESORS:	1. Dr Sana

2. Mr Chagonda

Criminal Trial

Ms T. L Katsiru with Mrs J Matsikidze, for the State

Ms Nhimbe, for the accused

MUZENDA J: The accused is charged with the crime of murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it being alleged that on 18 August 2018 and at Muranda Village Chief Zimunya, Mutare, the accused unlawfully caused the death of Brian Kaburamusasa by striking him once on the head with a three legged aluminium pot with the intent to kill him or realising that there was a real risk or possibility that her conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Brian Kaburamusasa died.

The accused pleaded guilty. On 17 August 2018, the  now deceased telephoned her from his work place in Burma Valley informing accused that he had been heavily assaulted by Veronica Mangezana’s parents who alleged that deceased was having an extra marital affair with her. Deceased invited accused to go to deceased’s work place.

On 18 August 2018, accused in the company of her two sons, Martin  and Mitchell proceeded to Kanda Farm in Burma Valley. Upon arrival at deceased’s workplace, the accused stated in his defence outline that they met deceased emerging from the bath room. According to the accused, she noticed that deceased looked unwell from the way he was walking. Upon probing the deceased why he could not file a complaint of assault with the police, she was told by the deceased that he was scared of the allegations of rape. Accused noticed that there were bruises on deceased’s thighs and the back was swollen. Whilst at Kanda Farm deceased and accused quarrelled over the alleged extra-marital affair. They in the company of their children left for their communal home in Muranda Village.

During the evening of 18 August 2018 the altercation of the extra-marital affair and rape allegations resumed. Exchanges of words ensued between the two where the accused expressed her disappointment about Veronica. Deceased got angry and assaulted the accused on her face, grabbed accused by the neck, pressed her down and contained to hurt her, during the altercation and assault, accused picked a three legged pot from the floor and struck the deceased person below the eye. Deceased told accused that he had been injured. After the assault, accused decided to leave the bedroom and sleep in the kitchen, however, the deceased threated to partake temic  poison for he could not endure going to prison over the rape allegations. According to accused’s defence, deceased drank poison and died of poisoning. Deceased died around 2200 hours on the 18th on the way to hospital. She contends that she was not responsible for the death of deceased and prays that she be found not guilty.

State Evidence

In order to prove its case the state led and produced the following evidence.

Exhibit 1 the post-mortem report No. 171434 and actually called Dr. Forgiveness Chitungo to explain the contents of the post-mortem. The cause of death was due to left chest deformity, there was blood in pleural space and subdural haematoma.

Exhibit 2 is the confirmed warned and cautioned statement whose English version reads:

“I do not admit to the charges levelled against me of killing BRIAN KABURAMUSASA who was my husband. What happened is that BRIAN KABURAMUSASA and I had a misunderstanding over an extra-marital affair with another girl. As a result of the misunderstanding we then engaged into a fight. I picked a three legged pot struck him once with it on the lower part of the right eye and he sustained a cut and started bleeding. After assaulting him I then went outside the house leaving him sitting on the bench wiping blood using a towel. BRIAN KABURAMUSASA  died after consuming poison.”

Exhibits 3A and 3B. Exhibit 3A is the aluminium three legged pot and exh 3B is the certificate of weight showing that the aluminium pot weighs 1,360 kilogrammes.

NAISON SITHOLE stays in Muranda Village Chief Zimunya, Mutare and deceased was his neighbour. On 18 August Martin Kaburamusasa came to the witness’ house and reported to him that deceased had ingested poison. He proceeded to deceased’s homestead and upon arrival, found deceased lying on the ground close to the door step to the kitchen hut with no shirt and wearing damp pair of trousers. He opened the deceased’s mouth to detect the poison smell but detected nothing. However he observed a fresh cut on the lower right eyelid. He assisted the deceased to be laid on the mat inside his bedroom hut and then placed him on the bed.

DIANA NDONDODZA on 18 August 2018 arrived at the deceased’s homestead and observed deceased lying on his bed on his back. Accused was wiping deceased’s face with a towel. She also observed that deceased had a fresh cut on his right eyelid. She was present when Charles Sherekete and Jobo Basopo opened deceased’s mouth looking for evidence of poison smell. They pronounced to those present that there was no poison smell.

JOSEPH MKWAVAYA stays in Muranda Village together with the deceased and accused. Deceased was his uncle. On 18 August 2018 he was approached by Martin Kaburamusasa when he was informed by the latter that deceased had ingested poison. Upon arrival at deceased’s homestead he found him lying on his back facing upwards. When he stepped closer and observed that the deceased had froth discharge from his mouth and a fresh cut on his lower eyelid although it was not bleeding. He called out deceased’s name but deceased did not respond. He observed that accused had a towel which she used to wipe deceased’s face. He was also informed by accused that the latter had a misunderstanding over an extra-marital affair, then accused had struck deceased once on the face with a three legged aluminium pot and that deceased later ingested termic poison, when the witness with the assistance of other neighbours were preparing to take deceased to the hospital, the witness realised that the deceased had died.

CHARLES SHEREKETE of Muranda village gave evidence similar to Naison Sithole but added that upon arrival at deceased’s homestead and whilst deceased was lying on the bed, deceased appeared to be sweating, deceased was also unconscious. JOBO BASOPPO, also of Muranda Village’s evidence is similar to Charles Sherekete’s. BRIGHTON KABURAMUSASA’s evidence tallies with CHARLES SHEREKETE’s in all material respect.

WALTER TSORO is a police constable based at Muromo Police Post. On 19 August 2018 he got a report that deceased had ingested termic poison and died. Upon arrival at the scene he observed the injury on deceased’s head, recovered the three legged aluminium pot as well as a plastic container with some whitish powder identified by the accused as the termic  poison, however the witness detected no vomit or froth. He took the pot and termic poison to the police post. TAFARA MAKAINGANWA is a police constable who worked with Walter Tsoro, his evidence is identical to that of Walter Tsoro. Ndaizivei Gwaza’s evidence has no much value to this matter. DOUGLAS MARIVADZE instructed Cst Makainganwa to take termic poison for analysis but there is no report about the findings of the scientist. CALEB MHLANGA is a clerk at Zimpost Mutare, he is the one who weighed the three legged pot, exh 3A.

MAUD MUSASA of Muranda Village is the biological mother of the deceased. On 18 August 2018 around 1500 hours she spoke to both deceased and accused after they came from Burma Valley. Accused visited her homestead first and the deceased later on called on her. The three spoke about the quarrel concerning the extra-marital affair that had happened at Burma Valley. She saw nothing wrong about the deceased’s health although she confirmed that deceased informed her about the assault by Veronica’s parents. When the accused went back to the homestead, deceased stayed behind with the mother. Deceased was later on summoned by accused for supper.

Around 2100 hours that day, accused approached her telling her that deceased had drunk poison and that his condition was deteriorating. She went to deceased’s homestead and upon arrival she noticed that deceased was lying on his stomach outside the kitchen hut near the door step. Accused was pouring water on deceased’s head and body. She (accused) went on to wipe deceased’s face with a towel, deceased upon being informed by accused about the witness’ presence, slightly lifted his head but in great pain, deceased became unconscious again. Deceased had difficulties in breathing, she also saw the injury on the eye lid. Her evidence on the res tallies with that of Naison Sithole and Joseph Mukwavaya. She also confirms what had happened leading to the injury on the deceased. She did not witness the fight.

MARTIN KABURAMUSASA, aged 13 years is deceased’s son. He accompanied accused to Burma Valley and upon arrival at Burma Valley, they met deceased coming from taking a bath. Accused and deceased had a quarrel whilst at Burma Valley over deceased’s extra-marital affair and accused wanted to assault the deceased. The witness observed some bruises on deceased’s sheen.

On the same date after their return home at Muranda Village, around 2000 hours, whist he was at his grandmother’s homestead he heard noise coming from his parents’ house. Later accused subsequently arrived at the witness’ grandmother’s house and informed her about the ingestion of termic poison by the deceased. She went back to her homestead and came back again to inform the mother-in-law that deceased’s condition was getting worse. His evidence about what he saw upon arrival at the deceased’s homestead is identical to the grandmother’s, Maud Musasa and need no repetition. According to this witness, deceased had not showed any sign of ill health besides the bruises on his legs.

The state then closed its case.

The accused gave evidence. She adopted her defence outline. She added that on the night of 18 August 2018 when she quarrelled with the deceased over his extra-marital relationship, she told deceased that whatever would happen to him in addition to the beating by Veronica’s parents deceased deserved it because deceased was not behaving decently. Deceased got irritated by accused’s remarks, stood up from where he was and assaulted the accused. Accused retaliated, deceased then pinned her by holding accused by the neck and accused was in a kneeling position. He was assaulting the accused, in that position accused picked up the three legged aluminium pot and directed her blow stretching the right hand backwards over her shoulder, the blow landed on the deceased’s head on the right eye. Deceased informed the accused that she had injured him. To the accused’s mind she was fighting with the deceased. The deceased released his grip from the accused and the accused placed the pot down. She went on to explain how they tussled over the poison and later how the deceased ingested the termic poison. She reiterated that deceased was badly assaulted at Burma Valley and sustained visible bruises on his body. She also observed some bruises at the back showing fresh signs of an assault on his body. His whole body was in pain. She contended that she did not use great force but moderate. She was adamant that deceased had ingested poison. She tried to give deceased milk and later on water, others proposed a mixture of water and cow dung but all was futile. She vehemently denied intentionally causing the death of the deceased. She sustained some injuries on the right cheek as a result of the assault by the deceased. Defence case was closed.

Did the state prove its case to the effect that the accused unlawfully and intentionally caused the death of Brian Kaburamusasa, or that   there was a real risk or possibility that her conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries which the deceased died from.

The following issues are not in dispute.

Deceased and accused were husband and wife.

Deceased was assaulted by Veronica’s parents over an issue of extra marital relationship and sustained injuries.

Before deceased got injured, the two had engaged in a fight and the post mortem shows that the deceased died of head and chest injuries.

Police took the contents of the substance which is believed by the accused to be termite poison for laboratory test.

There is no other witness who saw what happened to the deceased immediately before he got injured except the version of the accused.

The next question is what caused the death of the accused?

The accused in her defence outline, Annexure B states that the deceased ingested poison and according to the accused that might have caused his death. Joseph Mukwavaya, from the statement admitted by the accused, states that upon approaching the deceased on 18 August 2018, whilst the deceased was lying on his back facing upwards he observed that deceased had froth discharged from his mouth. I presume that the froth could have possibly caused by ingestion of poison by the deceased. In any case the accused handed to the police two cups containing what she perceived was the poison. The version of the defence cannot be just discarded as being untrue or improbable, in my view it has some semblance of truth in it supported by observation and oral evidence of witnesses. It is possible that deceased partook some water laced with poison that is why Joseph Mukwavaya observed froth oozing from deceased’s mouth. However that poison did not cause deceased’s death. Before us is an expert’s opinion who concluded upon examination of the remains of the deceased that deceased’s death was due to left chest deformity, blood in the pleural space and subdural haematoma.

As clearly observed by beadle cj

“In S v Annama 1964 AD 142, Greenberg ja stated:

“It is clear that expert evidence is admissible…. and once it is admissible the question in each case is….whether its cogency, either alone or with other evidence is sufficient to carry conviction, though numerous warnings are to be found in cases as to the depth with which evidence of this kind is to be approached.”

We therefore unanimously agreed that the deceased did not die due to ingestion of poison but died due to the injuries on the chest and on the head. We therefore reject the evidence of the deceased that deceased partook poison that led to his evidence. That line of evidence introduced by the accused is not supported by scientific evidence.

WHO CAUSED THE INJURIES ON THE DECEASED THAT LED TO HIS DEATH?

The injury on the deceased’s head is not in dispute in our view. The accused in her defence outline as well as closing submissions and evidence in chief told the court that she threw the three legged aluminium pot over her shoulder and the blow caught deceased’s head. That blow resulted in the deceased sustaining a deformed skull and that resulted in the subdural haematoma detected by the doctor. What is in dispute is the deformed chest. No one witnessed the fight between deceased and accused. We cannot dismiss the evidence of the accused more particularly whether deceased sustained chest injuries at the hands of Veronica’s parents.

DID THE ACCUSED KILL THE DECEASED ACTING IN SELF DEFENCE?

Section 252 of the Criminal Procedure and Evidence Act, provides such a defence to the accused. In R v Patel

“The issue is not one of self-defence: it is one of killing in defence of another. But the right is the same.”

“The court must be aware of being an armchair critic and must take account of the exigencies of the occasion.”

“Lastly the onus of negating self-defence in a criminal case is on the crown. Hence an accused is entitled to an acquittal if there is a reasonable possibility that he acted in self-defence.”

The defence is urging this court to make a finding that the accused when she struck the blow on deceased’s head, she was acting in defence of self. On the other hand the State submitted that this case is classified as a crime of passion driven by extreme jealous of the offender against the spouse who had had an affair with the other party. Accused did not initiate the attack on the deceased. She was carelessly and provocatively remonstrating deceased over what he had done. Deceased reacted angrily and assaulted the accused. Then a fight ensued. This chronicle of events is not in dispute. The question is, at the time the accused hailed the three legged pot on the deceased’s head whether she was under an unlawful attack. The answer to that question is on the positive. What is left out for decision by this court is whether the accused exceeded the means used to thwart the danger if the means used by the accused exceeded objectively the means that could have been reasonable in the circumstances then she would not have met the requirements espoused in s 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused was reckless as to the part of the body she attacked using a metal object resulting in the deformity to the deceased’s skull. The injury resulted in subdural haematoma which contributed to the death of the deceased. We accept that the accused was fighting with the deceased but she is the one who had provoked that fight in a way her life was not in danger at the instance of the deceased, though the attack or assault by the deceased was unlawful. The conduct of the accused meets the requirement of s 254 of the Criminal Law (Codification and Reform) Act which provides as follows:-

“If a person accused of murder was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything that is an essential element of the crime, he or she, shall be guilty of culpable homicide if all the requirements or defence of person specified in s 253 are satisfied in the case except that the means he or she used to avert the unlawful attack were not reasonable in all the circumstances.”

We are thus satisfied that accused is found not guilty of murder but guilty of Culpable Homicide.

Sentence

In assessing the appropriate sentence the court will take into account the aggravatory and mitigatory features in this case. Accused is a first offender, who had experienced a bumpy life in her marital life where she would continuously quarrel with her husband over infidelity. Such a quarrel led to the unfortunate death of her husband. She should have exercised restrain and self-control. She has now separated from her children, the family has broken down. I will also take into account the nature of the offence she has been found guilty of. However she has been found guilty of a serious crime where courts value the sanctity of life. I am going to pass a sentence that would assist accused to be rehabilitated back in the society.

Accused is sentenced to 3 years imprisonment of which 1 year imprisonment is surrendered for 5 years on condition within that period she is not convicted of any crime involving violence to which upon conviction she is sentenced to imprisonment without an option of a fine.

National Prosecuting Authority, state’s legal practitioners

Mutungura & Partners, defence’s legal practitioners