THE State V Tinashe Zimanyiwa

### Preamble
1
HB 26-19
HC (CRB) 82/18
XREF ZHOMBE CR 72/04/17
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THE STATE

versus

TINASHE ZIMANYIWA

HIGH COURT OF ZIMBABWE

MABHIKWA J

GWERU 6, 7, AND 8 FEBRUARY 2019

Criminal Trial

S Pedzisayi for the state

Ms C Dube for the accused

MABHIKWA J:	The deceased Oliver Tshuma was 39 at the time of his demise.  The accused was aged 23 at the time and resided in the same village with the deceased.

The accused now faces a charge of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  It was the state’s allegations that on 27 April 2017, the deceased was drinking beer at Banala Business Centre with two of his brothers.  At about 2000 hours, he decided to go home. She was walking home, the accused caught up with him in the school grounds at Banala School.  It was alleged the accused armed himself with a stick struck the deceased with it several times on the head.  The deceased fell to the ground as a result.  The accused left him lying on the ground and returned to the shops still holding the stick.  At the shops, he sent word to the Tshuma brothers to go and collect the deceased from the school grounds.  As a result, the brother went to the said grounds and found him lying in a pool of blood and unconsciousness.  They carried the deceased to the shops.  The accused was arrested drinking at Garigamombe bar.  He together with his bloodstained stick were put into one Godfrey Taderera’s car.  He was handed together with his stick to Zhombe Police whilst the deceased was ferried to Zhombe Hospital where he died in the early morning hours of 28 March 2018.

The accused pleaded not guilty to the charge of murder.  He somewhat feebly raised in his defence outline, the defences of intoxication, provocation and self –defence.

His outline was that he had a rough upbringing and went to school only up to grade 7, but managed to build his own home at the teenage age of 18.  He then started to fend for himself through gold panning.

On 27 April 2018, he started drinking beer at Banala Business Centre at about 3pm.  He says whilst drinking, he saw Calisto, Knowledge and the deceased (Tshuma brothers) in the company of a woman named Catherine whom he had stayed with as his wife for about 5 months before she left him.  He says he attempted to discuss an issue but the trio of the Tshuma brothers barred him from doing so and assaulted him injuring his front tooth.

He states that at above 8pm he decided to leave for his homestead.  He was intoxicated.  A few metres from the bar, he met up with the deceased.  He states the deceased became aggressive and hurled insults at him and demeaning him as a weak man who had been deserted by Catherine Chirema, thereby provoking once again.  A fight ensued.  Accused further states that the deceased was overpowering him when he picked up a stick nearby and used it to assault the deceased indiscriminately all over his body.  When the deceased fell down he ran back to Banala Business Centre.

He says at the centre, he got into Garigamombe bar about 20 minutes later, he was approached by a mob of people armed with logs.  They assaulted him until he lost consciousness only to regain it at a police station.

He states further that he never intended to cause the death, that it was not reasonably forseable that the deceased would die in the circumstances neither did he think that he could kill the deceased from the indiscriminate blows of the stick.

Accused had prayed then that he be found guilty of culpable homicide and be acquitted of the murder charge.

The accused’s warned and cautioned statement, which was confirmed by a magistrate sitting at Kwekwe was tendered into the record and was marked “Exhibit 3”.  Its English version is worded in the following terms:

“I admit to the allegations leveled against me.  I had a misunderstanding with Oliver Tshuma over a prostitute named Catherine Chirema with whom I had stayed for about five months as my wife.  I followed Oliver Tshuma from Banala Business centre as he was going to his homestead and started chasing him and then tripped and we started fighting. At that moment, I picked up a stick and struck him several times over his body.  I then left him lying and went to the shops.  (Underlining is my emphasis).

A post mortem report number 433-432-2017 compiled by Doctor Sangani Pesanai at the United Bulawayo Hospitals on 2 May 2017 was also produced in evidence and marked “Exhibit 4”.  His findings were that the cause of death was as listed below

(1)	Extensive subarachnoid haemorrhage

(2)	Depressed skull fracture

(3)	Assault.

He observed as marks of violence;

(1)	Laceration left ear (4cm)

(2)	Left frontal (2cm)

(3)	Left frontal 6 x 1cm

(4)	Left frontal 3cm

(5)	Depressed skull fracture (left frontal 7 x 4 cm.

Then also noted and recorded the following on his internal examination of the body.

Scalp:	 Extensive scalp haematoma on the frontal and left frontal region.

Skull:	Depressed skull fracture extending to the right parietal

Pericadium/Heart- Extensive subarachnoid haemorrhage

The state then led evidence from Calisto Tshuma. The court will not waste time repeating the evidence which is on record.  In any event most of it was irrelevant.  Surfice to say that on 27 April 2017, he was at Banala Business centre drinking opaque beer, which he described as “scud”.  He was with his brothers Daniel and Knowledge Tshuma.  A third brother, the now deceased Oliver Tshuma was a few metres away drinking beer with a lady of the night known to him only as Catherine.

Sometime in the evening of the same day, he and Knowledge were advised by one Doubt Magotsha that he had been sent by the accused to “tell the Tshuma boys to go and collect their dog at the grounds where he had killed it.  He and Knowledge proceeded to the school grounds as advised and there they found their brother Oliver lying motionless.  They carried him to the Business Centre, into Godfrey Taderera’s shop.  Thereafter, they and others sought the accused whom they apprehended at Garigamombe bar, still holding the bloodstained stick he had used to assault the deceased. When asked about Catherine, she described her as a lady of the night who at some stage cohabited with the accused for about three months leaving him and reverting to her prostitution ways.

Calisto denied that there was a time when the accused attempted to talk to Catherine and that he and his brothers had assaulted him (accused) for doing so.  This however, the court finds that he on a number of occasions denied the obvious, some of it note even necessary to bother about as it was irrelevant in the first place to the case at hand.  He told the court that after the apprehension/arrest, the accused and his offending stick were bundled into Taderera’s vehicle and handed to the police whilst deceased was taken to Hospital.

The second state witness was Themba Marako who had very little to say.  On the fateful evening, he was at Garigamombe bar about 2100 to 2000 hours when the accused arrived therein holding a blood stained stick.  He was apparently behaving wildly and fighting other patrons.  Before long a group of people swarmed the bar and arrested the accused.  The blood stained stick was taken from him he vigorously resorted arrest.

The above state witnesses were not at the scene of the murder crime.  They could not be expected to have said much.  On what they observed the court found them to be overally truthful and has no difficulties in accepting their evidence as the truth of what common cause at times accused killed the deceased.  Accused himself did not deny it.  It was the circumstances under which the deceased was killed that were the issue.

The accused then took to the witness stand.  This court must say that he was such a bad witness that he left even his own counsel having challenges to manage his defence.  It must be stated that from the onset he sounded like shopping for defences in his defence outline.  He was never emphatic on any one of them even in his outline.

On his alleged afternoon provocation, he testified that he was provoked when he saw the three Tshuma brothers sitting with Catherine and barred him from talking to her.  Remember in his confirmed warned and cautioned statement (Exhibit 3,) he himself described Catherine as a prostitute.  Now, in the real world, if you see a man or three men in this case sitting with a prostitute in a bar and then you confront them and try to take the prostitute aside to talk to her, that is the height of provocation.  He cannot claim to have been provoked in those circumstances.  The reverse is in fact true.  He provoked the Tshuma brothers and got more than he had bargained for.  To that end, the state submitted correctly that no time should be wasted on that failed defence of provocation, sit could not be availed to the accused.  Commendably, Ms Dube for the accused conceded.  Provocation must trigger a spontaneous reaction with no cooling period between the provocation and the attack and must generally satisfy to requirements of section 239 of the Code.

As regards, the defence of intoxication, he was far off the mark and nowhere near the requirements of Part IV, sections 219 to 222 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In any case, towards the end of cross-examination he was asked by Mr Pedzisayi for the state—

P.P	“would you say you drank and became so drank that you did not appreciate what you were doing.

A:	No

P.P	Do you agree therefore, that you appreciated what you were doing?

A:	Yes

P.P	Correct it is at this stage that you then confronted the deceased and questioned him about the afternoon incident earlier.

A:	Yes.”

All this took place when he had noticed, at that time of the evening that Oliver had decided to walk home, was alone and he followed him as he himself narrated in his confirmed warned and cautioned statement.  No person who has become so drunk as to lose his mental faculties behaves this way otherwise one would wonder how much of a genius he would be when he is sober.

Needless to say, he admitted as shown above that he had not lost his mental faculties.  The state was therefore right to submit that the defence of intoxication fell away with that admission. In any event, it would not have succeeded on the facts and commendably again Ms Dube properly and judiciously conceded and agreed with the state.

After the admission that he appreciated what he was doing, the accused claimed in his evidence just as he stated in his defence outline that he did not follow the deceased but met him at place were two (2) paths meet somewhere within Banala School grounds. He then claims that he confronted him about the earlier altercation in the afternoon.  He testified that the deceased insulted him thereby provoking him again.  A fight ensued and he defended himself.  The circumstances, as explained by him in the warned and cautioned statement are completely different.  According to that statement as shown above, he simply followed the deceased mostly likely without the other Tshumas noticing it.  He caught up with the deceased and started chasing him.  He tripped him to the ground.  The fight and the attack with a stick then followed. Both counsel correctly submitted therefore that such a scenario is no self-defence.  It would certainly not meet any of the requirements contemplated in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] neither would it meet the requirements of section 254 of the same code and be a partial defence.  Needless to say, there was no provocation either.

Both counsels have submitted that the accused may, nonetheless be found guilty of constructive intent and not with actual intent, or of culpable homicide as originally prayed by the accused.  We believe that the concession on the part of the state this time around was judiciously made.  The accused appreciated what he was doing.  The stick used in the assault (Exhibit 5) had a length of 83cm, thickest circumference of 11cm and an overall weight of only 0.405 kg.  it was not, standards.  The accused had nonetheless consumed alcohol which may have compromised his judgment during the assault.  He was thus reckless when it comes to the apparent force used that caused a depressed skull fracture as well as his concentration on the head area during the attack.

In the matter of State –v- Takamira Ndlovu HB-263-16 the accused repeatedly struck on the head with a wooden stool causing severe injuries including a depressed skull.  The post mortem report revealed that excessive force had been applied to inflict such injuries.

Also in State –v- Gambaya -1997 (2) ZLR 9, It is the court’s finding therefore that the accused may not have actually intended to kill the deceased.  However, he recklessly caused the deceased’s death.  The appropriate verdict in this matter has been agreed to by both counsel to be murder with constructive intent.  In State –v- Mugwanda –SC- 19-02, the Supreme Court set out the requirements of actual and legal intention.  An accused who while engaged in some activity, does not mean to bring about the death of the victim but foresee the possibility of such death and he continues to engage in that conduct or activity regardless of the foreable risk of death as a substantial possibility would be convicted of murder with constructive intent.

The requirements for a verdict of murder with constructive intent are;

a)	subject foresight

b)	as to possibility, not probability and

c)	recklessness.

See also my brother MAKONESE J’s findings in State –v- Emmanuel Bhuwe HB 248-18.

It is the court’s finding therefore that the accused was utterly reckless in the manner he attacked the deceased.  It is also our finding that he indiscriminately attacked a drunk, unsuspecting, defenceless and probably non-retaliating victim until the thicket end of the stick splintered into three (3) fragments.

In the result, and for the foregoing reasons, the accused is found guilty of murder with constructive intent.

Sentence

In assessing sentence the court will consider that the accused was 23 years old the time of the commission of the offence.  He is an unsophisticated young first offender.  The court will take into account counsel’s submission on his behalf that that the accused’s semi-illiteracy, rough upbringing, lack of parental guidance in his teen years coupled with youthful immaturity affected his reactions to particular situations and his choices in conflict resolution methods.

The court will consider that though his consumption of alcohol failed as a defence, it nonetheless is still mitigatory in that in a way it affected his judgment concerning the attack. That the accused will always carry the stigma of being a murder which in a way has already necessitated his family to appease the deceased’s family by way of paying two beasts.  It is culturally a societal appeasement so to speak.

The accused has however been convicted of a very serious offence.  What is disturbing about him is that he has shown no regret or remorse at all for his conduct.  He pursued a defenceless man from a business centre and killed him in the darkness.  In court, he pursued a hopelessly false defence to the bitter end.  He was forced to admit and concede certain facts as his defence crumbled in the face of heavy cross-examination and the weight of evidence against him. It has his counsel to thank for the concessions.  She judiciously made on his behalf in closing submissions.

He senselessly killed the deceased over a prostitute.  After the ruthless attack he moved around carrying his blooded murder weapon.  He tells Doubt Magocha to advise the Tshuma boys to go “and collect their dog” which he had killed at Banala School.  The Tshuma boys he was referring to (who in any case were younger than the deceased) were themselves much older than the accused to the extent that they went to school with his mother.

He was arrested very making and occasionally being a nuisance at Garigamombe bar with no iota of relent as he had indeed killed just a dog as he had earlier stated.  The deceased was attacked when he had left the beer drinking hole early enough in the evening to join his family in their sleep, oblivious of the accused’s murderous machinations that day.

Indeed the events of that day suggest that the accused just decided to believe like a bull elephant in mast must.  The time shall come, when these courts may be forced that those who behave like animals be in fact treated like animals by their removal from the society of humans.

The accused has served almost 2 years by way of pre-trial incarceration that is 1 year 9 months to be precise.  As already submitted what is also strongly is in his favour is that the stick he used in the attack was not in the bracket of lethal weapons, like an okapi knife, an axe, a spear, an iron bar, a machete etc, as we have witnesses in most cases.  It was also not the largest of sticks.

The court has been will blend and temper the sentence with same measure of mercy as verily implored by Ms Dube with the state conceding but not to the extent of demeaning the kind of murder the accused committed, as if it were culpable homicide.

In the circumstances, the accused is sentenced to 18 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Chitere Chidawanyika and Partners, accused’s legal practitioners