THE State V Muzowaka Mucheke

### Preamble
1
HMT 89-20
CRB 48/20
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THE STATE

versus

MUZOWAKA MUCHEKE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 27 October 2020, 3, 10, 13 and 16 November 2020

ASSESSORS:	1. Mrs Mawoneke

2. Mr Magorokosho

Criminal Trial

K Kabaya, for the accused

Mrs J Matsikidze, for the State

MWAYERA J: In this case the accused pleaded not guilty to a charge of Murder of his mother, in yet another domestic violence related murder. He tendered a plea of guilty to culpable homicide which limited plea the state did not accept and thus the matter proceeded to trial. A fully fledged trial of murder therefore occurred. The state alleged that on 27 January 2020 at Chishaya Village, Chief Tandi, Rusape the accused with actual intention or realising the real risk or possibility that his actions would cause death struck the deceased several times with a stone and bricks on the head leading to instant death of the deceased. The remains of the deceased were taken for post mortem and cause of death was established as head injury caused by blunt trauma. The post mortem report compiled by Dr Gonzalo was tendered in evidence as exh 2 by consent.

The brief facts of the case are that the 47 year old accused lived with his mother and a helper at Chishaya Village. On the fateful day accused returned home at around 0300hours when the helper and the mother had long retired to bed. The accused requested to be given sadza, whereupon the mother alerted him to get the sadza in the kitchen. After partaking the sadza which was meant to be his supper the accused demanded for tea from the helper. It was then that the accused’s mother went outside to try and pacify the accused. The accused could have none of that as he immediately turned violent and slapped his mother and further hit her multiple times with a stone and brick on the head. The deceased instantly died as a result of the head injuries.

The accused in his defence narrated events immediately before the striking of the deceased. He pointed out that he left home around 0700hours for piece work at his aunt’s place where he constructed a cattle kraal. After getting payment via ecocash from his brother for a piece job he had earlier undertaken he went for a beer drink with a friend one Chigogo. After partaking of home brewed beer he proceeded to the shops where he continued to imbibe and only left around 300am. He passed by Feya’s residence where he partook sadza. Upon his arrival at their homestead he requested for his supper and was referred to the kitchen. He partook the food and then retired to bed and woke up at 600am and requested for sugar in order for him to make a cup of tea. The deceased replied that accused had not bought the sugar much to the provocation of the accused. The accused having been angered by deceased’s utterances picked a half brick and struck the deceased. The accused denied intentionally causing his mother’s death pointing out that there was no bad blood between them. He admitted having negligently struck his mother on the head thereby causing her death. He further attributed his actions to his drunken state.

It is common cause that the accused struck the deceased on the head thereby causing injuries from which the deceased died. The only issue that falls for determination considering the accused’s defence is whether or not the accused had the intention actual or legal to cause the death of the deceased. Only one state witness gave oral evidence Margaret Bhiza’s evidence was essentially that on the fateful day the accused was violent as he knocked the door and windows violently. This was upon his return to the homestead around 0300hours. After partaking his supper which he demanded and was directed to the kitchen the accused demanded for tea. The witness narrated that the accused was unrelenting on his violent knocking as he demanded that he wanted tea and that deceased had to come out. As soon as the deceased went out the accused picked a stone and smashed the deceased’s head several times. Thereafter the witness further observed accused pick a half brick which he used to the assault of the deceased on the head. The witness alerted other state witnesses namely Morgan Mucheke and Norbert Hombarume. The deceased lay on the ground in a pool of blood dead. According to the witness the accused was drunk and violent on the morning in question. He was  angry when his mother told him that he did not buy sugar and advised him that she was going to inform one Mr Zvevameri who is a police officer and this prompted him to strike her using a stone and then a half brick. The witness told the court that prior to this date the accused and deceased generally had a cordial relationship. She stated at times accused complained that the mother was not working but did not go further after the witness explained that the mother was old. The witness and accused would take turns to cook. She also disclosed that at times accused would hail insult at his mother and on one occasion during her 2 months employment she heard accused threaten to assault his mother. The witness maintained that on the day in question the accused was not very drunk neither was he excessively drunk. He was just drunk. The witness’s version was quite clear and straight forward. We viewed her as credible witness.

Morgan Mucheke confirmed approaching the scene and after observing the body of the deceased he assisted the police in their investigations. His evidence was formerly admitted as it was on common cause aspects. Norbert Hombarume a brother to accused reported to the police after the helper Bhiza Margret phoned to notify him of the death of their mother. The witness’s evidence revealed that accused and deceased had some tensions over allegations of theft by accused. His evidence was formerly admitted. All the other witnesses’ evidence was on  common cause aspects and as such was by consent formerly admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The investigating officer Seremani Seremani attended the scene in the company of his team. He caused a sketch plan to be drawn from indications he also caused deceased’s body ferried to Rusape Provincial Hospital for post mortem and caused a warned and cautioned statement to be recorded. He also recovered the murder weapons stones and brick which he caused to be weighed by the Zimpost official Takemore Chiringa whose evidence also formerly admitted.

The accused’s confirmed warned and cautioned statement which accused admitted to striking his mother with a stone on the head until she died was tendered as exh 1by consent. The accused further pointed out that he was drunk and did not anticipate that his mother would die. Also adduced in evidence was the post mortem report which was tendered as exh 2 by consent. The doctor who examined the remains observed injuries on the head and concluded that the cause of death was head injury. The certificate of weight showed that the stone used weighed 6,5kg while the 2 pieces of farm bricks weighed 500g. The certificate of weight was marked as exh 3 by consent. Also tendered in evidence was exh 4 which is the sketch plan drawn by the assistant inspector Seremani (the investigating officer) per indications from the accused and witnesses.

The accused was the only witness in the defence case. He maintained his version that he struck the deceased several times while he was heavily intoxicated such that he lacked the requisite intention to commit the crime of murder. The accused sought to rely on intoxication as a defence and in closing submissions defence counsel persuaded the court to accept the accused’s plea of guilty to culpable homicide or in the alternative to find accused guilty of voluntary intoxication leading to unlawful conduct as defined in s 222 of the Criminal Code. It is apparent from the wording of s 221 of the Criminal Code that intoxication is not a defence in specific intent crimes. Section 221 states:

“221 Intoxication no defence to crimes committed with requisite state of mind

(1) If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility

(a) was voluntarily or involuntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime; but

(b) the effect of the intoxication was not such that he or she lacked the requisite intention, knowledge or realisation; such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.”

In circumstances it is apparent that the accused voluntarily partook of home brewed beer and at some stage mixed opac beer and spirit of which he said had high alcohol content but no evidence has been adduced to show that he lost control to the extent of not appreciating what he was doing for him to qualify to be dealt with in terms of s 222 of the Criminal Law Code. Again the section does not qualify intoxication as a defence but is to the effect that if the intoxication is such that an accused lacked the requisite intention, knowledge or realisation he or she shall be guilty of voluntary intoxication leading to unlawful conduct instead of the crime originally charged and liable to same punishment as he or she had been found guilty of the crime originally charged. Going by the evidence on record the accused does not qualify to fall under s 222 for the obvious reason there is nothing to negate intention since accused appreciated what he was doing.

In this case it is common cause that the accused was drunk. The circumstances of this matter however do not reveal that he was so inebriated that he could not appreciate what was happening. Our position is fortified by the clear and elaborate articulation of events of the day in question by the accused. The accused left the shops where he was drinking with friends. He passed by a friend’s house and ate food there. If he was knocked out he could have slept there or on the way. In this case he proceeded home and found his way home without help. While at home he violently demanded for food. He was directed to collect his food from the kitchen. He proceeded without help and partook the food. A while latter around daybreak from 300am and by 600am he demanded tea. Upon being told he did not buy sugar and that for the violence he was going to be reported to the policeman he reacted by invited the deceased out. Upon exiting the deceased was slapped with open hands and subjected to assault by a 6kg stone and bricks on the head. Although at some stages in evidence the accused sought to minimise the nature of assault by admitting that he struck he deceased twice and that the brick broke, the accused scumbed during cross-examination by the state counsel. He pointed out that he was wrong in that he struck deceased 5 times on the head using a 6-7kg stone. He actually pointed out that the stone was quite heavy but he nonetheless struck the deceased. Despite trying to minimise the nature and extent of assault on the deceased by accused we could discern that accused was violent on the night in question. He then assaulted the deceased with a stone and bricks aimed on the head. The accused in so doing appreciated that the head was a vulnerable part of the body and that the stone he was using to strike was heavy. Although the accused has not been shown to have premeditated the murder the nature of attack by a 6kg stone on the head a vulnerable part of the body of an old woman connotes that death was substantially certain. The offence of murder consist of unlawful act and intention. Once it is proved that both elements that is the actus reas and mens rea exist then the accused ought to be found guilty of murder. The concept of what constitutes intention was ably discussed in S v Mungwanda 2002 ZLR (1) 574. The court spelt out that actual intention exists in the following scenarios (i) where one sets out with an aim to kill and proceeds to kill or (ii) where one sets out with conduct when it is substantially certain that death will occur. See also S v Zororo HMA 16/17.

In this case having pointed out that the accused despite being drunk knew what he was doing. The mental element of the offence just like the physical aspect existed. When the accused struck the deceased with a stone and brick several times on the head, death was substantially certain. That there was no premeditation should not detract the court from the fact that when the accused struck the deceased with a heavy stone on the head he intended the consequences. The nature of weapon and the part of the body to which the assault was directed goes a long way in showing the intention. See S v Mema HB 143/13.

In casu having pointed out that the accused although having partaken alcohol, knew and appreciated what he was doing the following observations are worth noting. In circumstances where it was substantially certain that death would occur the accused selected a heavy stone 6kg and bricks to strike the deceased’s head a vulnerable part of the body. He assaulted several times bringing about certainty of the consequences. It can safely be concluded that when the accused persistently struck the deceased’s head with a 6kg stone his intention and perceived goal was to cause death of the deceased.

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

SENTENCE

We have considered all mitigatory and aggravatory factors in your favour. Mr Kabaya addressed the court in mitigation stressing that you regret the offence. He caused you to outline pouring out your heart on how your regret the offence. You are sorry for causing the loss of your mother’s life and you appreciate the hardship occasioned to your siblings and your relatives. That your siblings have customarily compensated your maternal relatives is a good human gesture which shows an expression of regretting what happened. You have also been in custody for 11 months awaiting the finalisation of the matter. That the period of suspense goes with anxiety and the trauma cannot be understated. You will indeed for life live with the stigma of having killed your mother. That you had partaken alcohol might have clouded your judgment, but certainly it does not exonerate you.

The offence you stand convicted of is serious and prevalent. Domestic violence is an unacceptable evil in the homes. What further aggravates the offence in this case is the fact that you raised a hand against the person who birthed you. You were merciless when you attacked your 76 year old mother on the head using a 6kg stone. Your mother was fairly advanced in age and being not only your mother but an elderly woman must have suffered a painful death at the hands of a child she suckled. You showed no respect at all for your mother even as is expected for children should honour their parents you defied that. What boggles the mind is why at 47 you were still dependant on your mother like a newly born baby. She was feeding you and yet you chose to bite the hand that fed you and kill her. It is clear from the evidence that other children were supporting your mother and not you which is why she questioned if you had bought any sugar for the tea you so vigorously and violently demanded. Precious human life was lost for sugar in circumstances where it could have been avoided. You had partaken of sadza twice in a period of less than 3 hours such that one wonders why you were unrelenting in your demand for tea.

You exhibited a high degree of cruelity by severally and severely assaulting your mother causing her to instantly loose life. No one has a right to take another’s life for whatever reason. The God given life should be safeguarded and protected. It is a constitutionally guaranteed right which should not be easily whisked away on whims.

Appropriate sentence have to be meted out, in order to send the message clear that domestic violence is an unacceptable evil. In order to express our revulsion for the violence your removal from society is called for. What further aggravates the offence is the fact that in an African society it is a taboo for a child to insult or raise a hand against a parent. In this case you went over board and violently killed your own mother.

Sentenced as follows:

23 years imprisonment.

Maunga Maanda & Associates, accused’s legal practitioners

National Prosecuting Authority, State’s legal practitioners