Aaron Nyarugwe v Dharwizi Transport (Private) Limited

### Preamble
1
HB 186/25
HCBCR 4243/24
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THE STATE

versus

NDUMISO MHLANGA

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 29 OCTOBER 2025

Assessors: Mr Ndlovu

Criminal trial

Ms TP Mutarisi, for the state

Ms B Khupe, for the accused

NDUNA J: - On the 14th of November 2023 the accused had almost completed his internship as traditional healer. He had been enrolled for the training by the deceased woman who must have been offering the accused some training. On that day the accused stabbed the deceased, his teacher and killed him. Upon being arraigned for the trial accused raised the defence of automatism.

The state did not call any witness as the evidence of all its listed witnesses has been admitted by the accused duly represented. Therefore, the accused admits that he stabbed the deceased who died as a result of the stab wounds. To this end as stated above the accused raises the defence of automatism.

Automatism refers to a state in which a person acts without conscious control or awareness, essentially functioning as an automaton. Automatism was defined in the case of Bratty v Attorney-General for Northern Ireland [1963] A.C. 386, where Lord Denning described it as "an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleepwalking."

The element   of   conduct   is fundamental, as   it requires   that   the   accused's   actions   must   be   voluntary.   If   an accused's   actions   were involuntary, such as in a state of automatism, the requirement of conduct is not met, and crime cannot be established.

In R v Victor [1943] AD 203, the accused, who suffered from epilepsy, was involved in a car accident and claimed that he was in a state of automatism during the incident due to an epileptic seizure. The court accepted this defence, noting that the condition was beyond the accused’s control, and as a result, his actions were involuntary. The court’s acceptance of the defence in this case highlighted the willingness of courts to recognize automatism when there is clear and convincing medical evidence to support the claim.

It must be noted that the defence is now statutorily provided. It is provided as follows:

“AUTOMATISM

216 Involuntary conduct

(1) Subject to subsection (3), the fact that the conduct of a person charged with a crime was not voluntary as required by paragraph (c) of section nine, that is, that the person did or omitted to do anything that is an essential element of the crime without conscious knowledge or control, shall be a complete defence to the charge.

(2) Without derogating from the generality of the meaning of “voluntary conduct”, the following do not constitute voluntary conduct⎯

(a) a reflex movement, spasm or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) conduct during hypnosis, or which results from hypnotic suggestion;

(d) conduct over which a person has no control, his or her body or part of his or her body being merely an instrument in the hands of a human or natural agency outside him or her;

and the expression “involuntary conduct” shall be construed accordingly.

(3) If a situation in which a person’s conduct is involuntary is brought about through the person’s own fault, a court may regard the conduct as voluntary.”

Firstly, what we note from the above is that this is a complete defence under criminal law. The underlying factor is the requirement that the conduct in question must be proven not to have been willed by the accused. It must have been an involuntary conduct.

The case we have is that the accused stabbed the deceased who then met her death. No body saw how the accused stabbed his victim. The deceased was discovered deceased after the accused had left the home. However, from the evidence led it is without doubt that the accused was the cause of the death of the deceased. The accused actually stabbed the deceased as captured in post mortem report. Accused was followed up and he was captured. He voluntarily submitted a warned and cautioned statement. In the caution he admitted having stabbed the deceased and brought about her death. He gave an explanation of how and why he stabbed the deceased. He did not allude to his now defence. It is hoped that the accused should have maintained his story when he was firstly invited to give by the police. Further, the accused simply alludes to the defence in passing here in court. There was need for the accused to lay a foundation upon which the he raises his defence. In S v Mafusire HH130/2010 it was held that;

“In the present case we are not persuaded that the accused laid a foundation for such a defence․ Apart from his mere say-so there is no other evidence from which one may infer that he experienced a black-out․ It is incredible that he could recall how he assaulted the deceased with a stick but could not recall how he assaulted her with an axe․

In this case the accused told out that he had bought his knife with which he intended to stab and kill the deceased. The accused gave out his story with such eloquence that he can not manage to drop it now.

Clearly the accused murdered the deceased for reasons he chose not to disclose. He is accordingly found guilty of murder with actual intend.

Reasons for sentence

The accused formulated his in intention to kill the deceased and he proceeded to purchase a knife for the killing. He kept the knife hidden in the homestead awaiting when a chance to execute the murder would present itself. The chance presented itself and accused found himself alone at home with the deceased. He then stabbed the deceased and he ran away. This shows that the murder was pre-planed and well executed.

Section 47 of the Criminal Law Code, as already stated, deals with aggravating circumstances in murder cases. Section 47(2) sets out circumstances which a court must treat as aggravating, while section 47(3) sets out further circumstances that a court may find aggravating.

In all cases of murder, a constant factor is that the accused with actual or legal intention caused the death of a person. This is what makes murder such a serious offence, because it violates a person’s right to life, guaranteed by section 48 of the Constitution.

The case before the court was executed with a weapon. That makes it an aggravated offence of murder. The showed a lack of respect for the deceased. It is not proper for a younger person to seek to assault an elder. That shows that the accused was of rowdy conduct.

However, the accused was quite a young person when he committed the offence. He was aged about 23 years old. In S v Zimondi HH-179-15 the accused stabbed to death his girlfriend following an altercation with her. When deciding upon sentence the court took into account the age of the accused. This is what the court said:

The age of the accused at the time of the commission of the offence about 22 can certainly not be ignored. The court take judicial notice of the fact that immature adults and mature adults react differently and behave differently faced with the same set of facts or scenarios. Immaturity of the accused on matters of emotions and love can therefore not be ignored when one considers the moral blameworthiness of the accused for purposes of sentence…. The accused person even during trial per the court’s observation depicted demeanor which displays youthfulness at play given his playful oblivious stance during the serious trial. We will therefore take note of the fact that at time of commission of the offence, the accused was indeed an adult but an immature adult.

……given the accused’s age at the time of commission of the offence, 22 and even now 24 at the time of sentence, it is our considered view that the sentence to be imposed to a relatively young man or young offender should not be that we should break him. There is room for the accused given his age to turn and be a better citizen in the country. It is mainly with the consideration of the accused’s tender age at the time of commission of the offence that we will not consider life imprisonment as appropriate in the present circumstances, but we will consider a lengthy imprisonment term

In S v Masango & Ors HH-726-16 a quarrel developed at a beer drink over a petty matter. The three accused stabbed the deceased with a knife and assaulted him with clenched fists and booted feet. The assailants were young persons aged 21, 24 and 23 respectively. They were found guilty of murder with constructive intention which the court found was a mitigating circumstance. The court accepted that the combined effects of youthfulness and intoxication reduced the moral blameworthiness of the accused. However, a deterrent sentence was appropriate. The court said:

“Regrettably it has almost become a norm that petty disputes, particularly at beer drinks are resulting in needless deaths or loss of lives in this country. Such conduct must be declared deplorable and this court needs to reiterate and send a clear message that consumption of alcohol should not be used as an excuse to commit heinous offences such as the present one.” The first accused who had a previous conviction for assault was sentenced to imprisonment for 20 years whereas the other two accused were sentenced to imprisonment for 15 years.

It is therefore clear in this case the accused cannot escape a lengthy prison term for the murder of the deceased. View must be given to his age.

According the accused is sentenced to 20 years imprisonment

The National Prosecuting Authority, state’s legal practitioners

V Chikomo Law Chambers, accused’s legal practitioners