THE State V Godfrey Machingura

### Preamble
1
HB 267/20
HC (CRB) 89/20
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THE STATE

Versus

GODFREY MACHINGURA

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Ms C J Baye and Mr A.B Mpofu

GWERU 1 OCTOBER 2020

Criminal Trial

M Ndlovu, for the state

D Chiromo, for the accused

MABHIKWA J:	The accused is charged with the crime of murder in terms of the Criminal Code, it being alleged that he intentionally or realising the real risk of death ensuing, killed his wife Winnet Nyika on 12 February 2019.  The accused has pleaded not guilty to the murder but has pleaded guilty to culpable homicide.

The agreed statement of facts filed by the state and the defence reveals that the couple quarreled over a text message that went into the deceased’s cellphone.  The accused then suspected the deceased of infidelity.  A misunderstanding ensued followed by a fight.  In the process the accused assaulted the deceased on the back with an axe handle and open hands.  The deceased grabbed and pulled the deceased’s testicles.   The deceased apparently then throatled her forcing her to loosen her grip.  She lost consciousness.  The accused poured cold water on her, and then left to look for trasnsport thinking that she would regain consciousness.  She never recovered.

The post-mortem report prepared by Doctor Roberto Lara Diaz reveals that the cause of death was not assault but asphyxia, neck constriction and strangulation.  The accused has denied that he intended to kill the deceased.  Still, he accepts that he was negligent in his conduct leading to the death of the deceased.  It is also common cause that although the axe (Exhibit 2) was produced, it is only the 62 cm long and 3 to 4 cm thick in diameter handle that was used by the accused.

The state has conceded that it cannot be proved that the accused intended to kill the deceased either in the form of dolus directus or dolus eventualis but was indeed negligent in causing the said death.  In our view, the concesion by the state is properly made.

Accordingly, the accused is found not guilty of murder but guilty of culpable homicide.

Sentence

The accused is 33 years old.  He is married.  He has 1 child.  The deceased was his second wife.  It is in accused’s favour that he pleaded guilty to culpable homicide and has in fact always admitted negligently killing his wife.  He has spent some 19 months pre-trial incarceration awaiting trial.  He claims to have been provoked by a phone message.

The accused however has collided with the law from the very deep end. From the facts, it appears that both the accused and the deceased may not have even seen the message(s) that caused the death.  They seem to have quarreled until the wife’s death and the court has not even been told what the message exactly was about or stated.  The belief was that it was a love message and infidelity was suspected.  The provocation, if any was unreasonable.  The deceased’s phone was allegedly put on the charger and a message or messages were received on the phone.  The accused demanded that the messages be opened whilst the deceased refused.  This sparked the violence that led to the death.  This kind of behavior should not be tolerated to the extent of leading to too lenient sentences as that may send very wrong signals that spouses may pry at each other’s private communications as much as they want simply because they are spouses.  A message should be sent out there, without encouraging infidelity of course that a cellphone is a useful gadget meant for one’s private, and by consent, public use.  Generally, with the changing societal nouns and values, and particularly with the empowerment of women, gone are the days when women were treated like children who could own nothing and if they did, they could only own even a phone on the whims of a spouse.

It is no secret and it needs no stressing that cases of Domestic Violence are on the increase in our country.  Quite often, both men and women, especially spouses, are guilty of the vice that cellphones are no longer used for their intended purposes only.  They have become sources of anguish and people are no longer safe because of “peeping” spouses.  In casu, the accused refused to follow reason and restraint.  Even after his first wife, Nomatter Mangwere tried to mediate, he opted for violence.

I will re-iterate as my brother Justice CHITAPI did in State v Fortunate Nsoro HH 190-16 that in terms of section 57 of the Zimbabwean Constitution, every person has a right to privacy of communication.  In fact I will add that the spying that spouses often do infringe on the rights to privacy in terms of section 57 (d) as read with section 61 (1) (a) of the Constitution.

Section 57 (d) reads that:

“Every person has the right to privacy, which include the right not to have

(d) the privacy of their communication infringed;”

Section 61 (1) (a) reads that;

“Every person has the right to freedom of expression which includes:-

(a) freedom to seek, receive and communicate ideas and other information.”

The accused’s insistence that the deceased should open and read a communication made to her on her own phone was wrongful and an infringement upon the deceased’s right to privacy of communication.  The deceased was lawfully entitled to refuse to open and read the messages even if she was the accused’s wife.  The accused was the cause of the fatal altercation by his insistence.  The practice of investigating and spying on other people’s phones should stop and strong messages by way of exemplary sentences should be sent to society.  The court is guided also by the cases of

(a)	State v Lovemore Zulu HB 88-12

(b)	State v Obert Ncube HB 327-16

The court will of course consider the remorse shown by the accused.  As already stated, he has always agreed that he killed his wife negligently.  The circumstances of pouring water on her and the attempt to look for transport to ferry the deceased to hospital also point to remorse on his part.  Finally, although no form or amount of payment will ever bring back the dead, the accused, to some extent followed the cultural appeasement rite of the dead in consoling family members by paying 3 cows and 5 goats.  He still intends to pay 7 more cows.

These courts will not tire in repeating that life is precious and sacrosanct.  In casu, a young woman’s life was needlessly lost over a message(s) that was not even seen.  Clearly, whilst accused might look forward to a reunion with his other wife, child and relatives, the deceased cannot, because of the permanent nature of death.

Accordingly, we believe the following sentence is appropriate.

The accused is sentenced to ten (10) years imprisonment 3 years of which are suspended for 5 years on condition the accused does not, within that period commit any offence involving violence on the person of another, for which upon conviction he will be sentenced to a term of imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Masawi and Partners, accused’s legal practitioners