The State v Clemence Chikazhi

### Preamble
1
HCC 87/24
HCCR 1219/24
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THE STATE

Versus

CLEMENCE CHIKAZHI

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI,23 November 2024

Assessors:	1. Mr. Kamanga

2. Mrs. Mateva

Criminal Trial

K. Teveraishe, for the State

S. Shoko, for the accused

MUZOFA J: The accused pleaded not guilty to the charge of murder as defined in s47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter9: 23], “the Criminal Law Code”.

Factual Background

The allegations in the State’s summary are that on the 25th of July 2024 at Dugeni Shopping Centre, the accused assaulted the deceased a 75-year-old man one Philip Mashava.

The accused was a village Head and the deceased was one of the villagers in the accused’s area of jurisdiction.

The two met in Pariwa’s shop at Dugeni Shopping Centre. They had an altercation in the shop. It was unclear what the altercation was all about. It could have been about space by the shop counter. The deceased wanted the accused to make way for him so that he can place his order. The accused said the deceased had asked him to refund the chickens the deceased paid to a traditional healer. Whatever the cause of the dispute, the accused was not amused by the deceased’s conduct. He charged at the deceased and grabbed him by the collar. Pariwa, the shop owner restrained him.

The deceased left the shop. Shortly thereafter the accused also left the shop. What transpired thereafter is in dispute. The State alleges that the accused attacked the deceased by striking him with booted feet and a half brick.

The accused denied the offence. He admitted grabbing the deceased by the collar but not assaulting him leading to his death.

He said he met the deceased in Pariwa’s shop. They had an altercation. The deceased had demanded the chickens he paid during a cleansing ceremony by a prophet commonly referred to as tsikamutanda invited by the accused. He threatened the deceased and held him by the collar. He then left. The next time he saw the deceased seated with his son and others drinking beer. The accused denied assaulting the deceased in the manner alleged by the State and causing his death.

The State’s Evidence

By consent the evidence of Doctor Nyamdela, Costa Nhambura, Doctor Gomera, Elson Madhuku and Willard Mubatapasango was admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA).

The evidence of these witnesses can be summarised as follows:

Sergeant Willard Mubatapasango was a duly attested member of the Zimbabwe Republic Police. He received a report of attempted murder from one Mathew Ostane. By then the deceased was admitted at Makonde Christian Hospital for treatment. He was later transferred to Chinhoyi Provincial Hospital where he subsequently died. He arrested the accused, and recorded an extra curial statement. The accused made indications in the presence of Constable Madhuku. He also recorded statements from witnesses.

Elson Madhuku was also a police officer stationed at Mhangura Police Station. He attended the scene of crime in the company of Sgt Mubatapasango. The witnesses and the accused made their indications in his presence.

Costa Nhambura was a mortuary attendant who received the deceased’s body at Chinhoyi Provincial Hospital. Doctor Nyamdela certified the deceased dead and Doctor Gomera conducted a post mortem and concluded that death was due to severe head injury.

Before leading viva voce evidence, the State produced by consent the post mortem report in terms of s278 (11) of the Criminal Procedure and Evidence Act, the confirmed warned and cautioned statement in which the  accused denied the offence except that he simply grabbed the deceased by the collar only.

The following witnesses gave evidence before the court:

1. Mathew Ostane

He knew the accused as  a local person and a headman. The deceased was his stepfather. On the 25th of July 2024 he went with the deceased to Dugeni Shopping Centre their local shopping place.

They entered Pariwa’s shop. The accused was by the counter placing his order. The deceased went to the counter and asked accused for space to place his order. The accused refused. Deceased teased the accused who became angry and grabbed deceased by the collar. Pariwa restrained him.

The deceased left the shop first. The accused also left the shop after him. Shortly thereafter he heard some noise outside. He went outside to check, he found the deceased lying on the ground. He saw the accused strike the deceased with a brick and booted feet. He restrained the accused.

The deceased was unconscious. He had no visible injuries. He secured transport from Pariwa and took him to hospital. He did not know if the deceased and the accused had grudges between them.

During cross examination he was adamant that the accused struck the deceased with a half brick and booted feet. What is surprising though is that, he said there were many people at the shops but none were willing to give evidence. He said he did not know whether the deceased was drunk. He denied that the deceased had soiled himself when he approached the accused in Pariwa’s shop.

2. Stephen Pariwa

He owned a shop where the deceased and the accused’s altercation started. He knew both as local villagers. The accused entered the shop first. He made his enquiries by the counter top. The deceased later arrived and approached the counter. For some unknown reason he indicated to the accused that he was not drunk that day. The accused held the deceased by the collar. He did not know why the accused acted as such. He refrained him.

The deceased left. The accused remained inside the shop. Shortly thereafter the accused left the shop too. He heard some noise outside. He went outside to investigate. He saw the deceased lying on the ground. He saw Ostane holding the accused by his hands as if to restrain him. Accused did not resist.

He returned into the shop. Thereafter Ostane approached him for transport to take the deceased to the hospital. They passed through the police station first. The accused remained behind.

He did not see the deceased drinking beer but the deceased appeared drunk. He denied that the accused left for his workplace. The accused’s place of work was about 20 to 25 minutes’ walk.

Under cross examination he confirmed that he did not see any visible injuries. He did not see the accused strike the deceased. He did not think the altercation in the shop was anything serious. He considered it minor. However, he believed something could have happened between the accused and deceased that is why Ostane held the accused. The deceased’s clothes were dirty. He did not see people where the deceased, Ostane and accused were. He said he did not hear the conversation between the accused and the deceased about the traditional healer and chickens even if he was close to the two.

3. Zvaipa Chiranga

He knew both the deceased and the accused. He had no relationship with either of them. He stayed at the shopping centre. His shop was about 2 metres from Pariwa’s shop. He was seated outside the shop but the spot was not so visible to others.

He saw the deceased emerge from Pariwa’s shop. The accused followed, went to deceased and held him by his hands. The accused punched the deceased with a clenched fist. The deceased fell and the accused started stomping the deceased.

The deceased’s son emerged from Pariwa’s shop. He refrained the two. The accused left. The deceased was lying on the ground. He together with others caused the deceased to be taken to the hospital. He observed the deceased and saw that he had an injury on the head and he was bleeding.

Under cross examination he said people may not have seen him because he sat at an obscure place but he could see what was happening. He said the deceased was struck with a brick in the presence of Ostane. He said the deceased was bleeding from the left side of his head. He was about 20 metres from the scene. The two were accusing each other of witchcraft.

The State then closed its case.

The accused’s evidence

The accused took oath and adopted his defence outline. In addition, he gave evidence. He said he was in Pariwa’s shop by the counter when the deceased arrived. He said he only held the deceased by the collar and left for his workplace. The accused had demanded the chickens he had contributed when a traditional healer exorcised their village sometime back. He confirmed the existence of the place that Zvaipa could have sat. He persisted that deceased had soiled his clothes. He saw the deceased drinking beer. He was so drunk that he tripped and fell on his own.

In his cross examination he said when he held the deceased by the collar he wanted to threaten him. He did not assault the deceased. He did not see the deceased lying down, he had no reason why the witness implicated him.

The defence then closed its case.

Both legal practitioners then made oral closing submissions as envisaged by the law.

The State’s Closing Submissions

Mrs Teveraishe  for the State addressed the court first. She highlighted the common cause issues, that the deceased had an altercation with the accused, who held him by the collar. The deceased was seen on the ground with the accused nearby.

The only issue was whether the accused struck the deceased. The accused was seen by the 2nd and 3rd witnesses striking the deceased with booted feet and a half brick. These witnesses were credible. The accused’s conduct cannot be said he had intention whether actual or legal to cause death. He must be found guilty of culpable homicide. At the very least the accused maybe convicted of assault as he admitted grabbing the deceased by the collar which constitutes an assault.

The defence’s Closing Submissions

Ms Shoko  for the accused submitted that the State witnesses left a doubt in the State case. That doubt must operate in the accused’s favour. There were marked inconsistences in the state witnesses’ evidence. Firstly, the witnesses were not consistent on the injuries sustained by the deceased. Ostane did not see blood nor any visible injuries. Zvaipa saw blood and injuries. The truth was not established.

Ostane said he saw the accused strike the deceased, his evidence should not be accepted at the mention. He had a motive to lie against the accused. The deceased was his step father and he had every reason to try and embellish his evidence to implicate the accused. Pariwa did not see the accused assaulting the deceased. The alleged brick was not produced. Zvaipa’s evidence was so inconsistent with the rest of the state witnesses that his evidence must be rejected. The probabilities are that he was not at the scene.

Both legal practitioners did not refer to any law or case law to buttress their legal conclusions. Closing submissions cannot be made on factual analysis only. After the factual analysis the legal issues are identified and addressed with reference to the law to come up with a position advocated for. The approach by counsel is to leave everything to the Court. As officers of the Court legal practitioners must assist the Court with  legally well-reasoned  submissions.

Analysis of Evidence

The State must prove beyond a reasonable doubt that the accused was the factual cause of the deceased’s death. This is also known as the actus reus. This must be proved before the mens rea.

There is no doubt that the accused and the deceased had an altercation inside the shop. The altercation was a result of some past occurrences that are irrelevant. The accused was the first to initiate physical violence. He admitted this part.

Outside, the accused said he did not go anywhere near the deceased. He went to his workplace which was, according to witnesses some 20 to 25 minutes’ walk. However, all the State witnesses placed him at the scene. Whether he then went to his workplace or not thereafter is irrelevant.

We must assess the credibility of the witnesses’ evidence.  Each version must be tested against objective evidence where it is available. The evidence is also tested against the rest of the evidence before the Court. Thereafter the available evidence must be looked at as a whole. The Court must not rely on one piece of evidence. The approach followed in S v Chabalala 2003 (1) SACR 134 (SCA) correctly sets out the manner in which evidence should be evaluated. The Court had this to say,

"The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence taking proper account of inherent strengths and weakness, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt of the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be on an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch to one (apparently) obvious aspect without assessing it in the context of the full picture of the evidence".

In essence evidence must be assessed as a whole and in a piecemeal form.

Ostane was the deceased’s step son. As correctly submitted for the accused relatives may have some interest to secure a conviction against an accused. This underpins the desire to embellish evidence. However, this finding of exaggerations cannot be simply inferred in the absence of any indications from the evidence of such conduct.

Ostane was candid in our view. He did not know how the deceased fell to the ground. But he saw the accused kicking the deceased and striking him with a brick. He found the deceased already on the ground. If he was malicious he could have even told the Court that the accused hit the deceased and he fell to corroborate Zvaipa. He did not do so. We therefore do not believe he embellished his evidence. He was a credible witness.

His evidence was confirmed by Zvaipa. We must look closely at Zvaipa’s evidence. Ms Shoko cross examined Zvaipa at length. Indeed, Zvaipa appeared to be a lone voice, who sat by watching the events. We wondered if people gathered, how could he see what transpired. The accused did confirm the spot he sat as existing. The witness explained that he has a condition that we also took note of in court. He actually gave his evidence while seated. So on this day he sat by the chair and watched. The defence could not discredit him. He was the person who explained how the deceased fell. The accused struck the deceased with a clenched fist and he fell backwards. Thereafter he struck him with a half brick and booted feet. The last part was witnessed by Ostane.

Generally where there is an altercation at a shopping centre the curious human nature is drawn to the scene, people will always gather to witness for themselves. Could Zvaipa see beyond the people? We are convinced that he saw what transpired as he described it.  He explained that the time when the accused hit the deceased initially there were no people gathered since everyone was about their business. The chances are that people gathered when the deceased fell. He said the deceased fell on his back. We accept this part of his evidence.

Zvaipa said the deceased had visible injuries on his head and was bleeding. He also said the deceased was left lying in the sun at the scene for about three hours. We do not accept his evidence about the injuries. It is inconsistent with objective evidence and the rest of the evidence before the Court. Would the evidence by Zvaipa that he saw blood mean he was not credible? Would it probably mean he was not even at the scene and could be a hired gun as suggested by the defence? Indeed the post mortem report and Ostane do not corroborate his observations. The post mortem report is the objective evidence. No open wound was recorded by the Doctor. We also do not accept that the deceased’s body lay in the sun for hours.  His estimation of time was poor. Ostane said he asked for transport from Pariwa. It seems transport was not availed immediately that’s why the deceased’s body was carried to some shed.

The State witnesses therefore contradicted each other on the injuries. A court can only make an adverse finding where there are material contradictions. In this case whether there was bleeding or not, open wounds or not  in our view is immaterial. What is material is that the deceased sustained head injuries. We reject Zvaipa’s evidence on this aspect. However that does not mean his evidence must be totally discarded. We accept his evidence on how the accused assaulted the deceased. That evidence was partially corroborated by the other witnesses.

Pariwa did not see the assault but he found the deceased held by Austin. First, Pariwa confirmed the accused’s presence at the scene. It would be incomprehensible and downright dumb for Ostane to restrain accused if he had done nothing. Why would he hold the accused’s hands if he did nothing? Pariwa was an independent witness. He had no reason to falsely implicate the accused. His evidence provided circumstantial evidence.

Circumstantial evidence is equally persuasive as direct evidence. The only issue is that the proved facts must be such as to exclude every other reasonable inference except that the accused committed the offence. See the celebrated case of R v Blom 1939 AD 188 at 202-203.  Pariwa’s evidence proved the presence of the accused at the scene. It also proved that the accused was restrained. The only inference is that he was restrained after assaulting the deceased. Pariwa’s evidence was credible in its totality. He was a credible witness who did not show any desire to exaggerate the evidence. This evidence corroborated Ostane and Zvaipa’s evidence.

We now assess the accused’s defence. The Court is enjoined to consider the defence evidence. The accused has no onus to prove his defence. He can even opt to remain silent and not give evidence in terms of s 199 of the Criminal Procedure and Evidence Act. However where this option is exercised the Court can draw adverse inferences against the accused. The only requirement at law is for the accused to give an explanation in response to the charge. If the explanation is reasonably possibly true then he must be acquitted. In S v Ndlovu HH 189/23 the court opined that if the accused’s version is possibly true in substance the court must decide the matter on the acceptance of that version and acquit the accused.  See also S v Kuper 2000(1) ZLR 113(SC) @ 118B-D. His explanation is also tested against the available evidence and the probabilities inherent in the case. His explanation is not considered from an abstract position.

The accused said after he altercated with the deceased in the shop he left for his workplace. He completely removed himself from the scene of crime. What is telling though at some point he offered an explanation how the deceased may have met his death.  We wondered why he opted to give an explanation if he had nothing to do the deceased’s death. Could it be a ploy to shift the blame? He said the deceased was too drunk. He had soiled himself and was dirty. He must have tripped and fell.

We did not find the accused credible at all. We note that the accused was generally aggressive towards the deceased on the day. Whatever their bone of contention in the shop he was quick to grab the deceased by the collar. In our view the real dispute between the two was not about the counter there could have been something more between the two. It was known to them. It could be something about witchcraft and the traditional healer. This is reinforced by accused and Zvaipa’s evidence. The accused was already on a collision course with the deceased.

All the state witnesses placed him right next to the deceased. He did not dispute that Ostane restrained him. We therefore reject his evidence that he was at his workplace. We also reject that he did not strike the deceased as alleged.

The State’s case was tainted by Zvaipa’s evidence about the blood and open wound but we already found that it is immaterial. The defence evidence was mutually destructive. There was overwhelming evidence that the accused caused the deceased’s fall and he struck him while on the ground. He was therefore the factual cause of the death. The cause of death was massive cerebral oedema which is swelling of the brain.

The Intention

In a murder case , the accused can be convicted where it is proved that he had actual intention or constructive intention. Actual intention is inferred where the accused by his conduct set out to cause the death of the deceased. This is usually inferred in cases of armed robbery where accused persons set out to commit the robbery armed with lethal weapons.

On the other hand constructive intention (legal intention) can also inferred in certain circumstances. Professor Feltoe in the Guide to Criminal Law in Zimbabwe 2005 Edition at page 96 explains legal intention as:

“Accused does not mean to bring about death but he engages in an activity after he foresees that there is a real risk that the activity will result in the death of a person.”

And goes further to state that:

“Where it is alleged that accused had legal intention to kill accused will usually deny that he foresaw that his actions would result in death.  The question then is whether, as a matter of inference he did have such foresight despite his denial.  He can only be convicted of murder if the only reasonable inference that can be drawn from the facts is that he had legal intention to kill.  If the court draws this inference, the court decides that he must have and did foresee the possibility of death.”

Intention can be inferred from the accused’s conduct. The weapon used, the part of body targeted, the number of blows and the force used assists the court to infer the intention.

In this case the accused struck the deceased once and he fell, then he struck him once with a half brick and kicked him with booted feet.As already stated there is a high probability that the deceased sustained the fatal injury when he fell on his back after being struck with the clenched fist. We do not believe the booted feet and the half brick caused the injuries. The deceased could have sustained the fatal injury when he fell on his back and hit his head on some hard surface. By this conduct the accused lacked both the actual and legal intention to cause the death of the deceased.

Our finding does not translate to the release of the accused. The accused can still be found liable for culpable homicide which does not require intention but is an offence based on negligence. According to Snyman CR, Criminal Law 5th edition at page 209, the following test is generally accepted as the complete test to determine negligence:

‶A person’s conduct is negligent if

The reasonable person in the same circumstances would have foreseen the possibility

that the particular circumstances might exist; or

that his conduct might bring about those particular results

The reasonable person would have taken steps to guard against such a possibility; and

The conduct of the person whose negligence has to be determined different from the conduct expected of the reasonable

The conclusion that the relevant person was negligent can only be drawn once all three above mentioned requirements have been compiled with. ″

This common law position has been codified in the Criminal Law Code under s16 which deals with negligence as a mental element. The Legislature found it necessary to differentiate cases, thus the proviso in subsection two thereof  applies in culpable homicide cases ss 3 thereof provides

16 Negligence

(1) Where negligence is an element of any crime⎯

…

……

(c) constituted wholly or partly by a consequence resulting from the conduct of an accused person, or by the existence or absence of any circumstance in which such conduct occurred, the test is objective and falls into two parts⎯

(i) whether or not the accused person failed to realise that his or her conduct might produce the relevant consequence or that the relevant circumstance might exist or be absent; and

(ii) if the accused person did fail as provided in subparagraph (i), whether or not the person’s failure was blameworthy in that a reasonable person in the same circumstances⎯

A. would have realised that the relevant consequence might be produced and would have guarded against it; or

B. would have realised that the relevant fact or circumstance might exist or be absent and would have taken steps to ascertain whether or not it did exist; as the case may be.

The test is objective. The accused failed to realise that his conduct might result in death and guard against it.  He was dealing with a fragile old man aged 75 years. From the evidence it was clear that the deceased had taken some beer, he was drunk. The accused infact must have exercised some restraint considering the deceased’s age. The evidence showed that the accused slapped the deceased once and he fell. He then struck him with a half brick. Generally hitting someone with a clenched fist does not lead to death. In this case it was unfortunate that the deceased met his death in this way. The accused must have intended to discipline this deceased who probably challenged his authority as a headman.

He was negligent in dealing with the deceased.

Accordingly, he is acquitted of murder. He is found guilty of culpable homicide in contravention of s49 of the Criminal Law Code.

SENTENCING JUDGMENT

Introduction

The accused has been convicted on a lesser charge of culpable homicide. He struck the deceased a 75 year old man after a minor dispute. The accused was a village head in the area. The deceased was one of his subjects.

He denied the offence stating that he only threatened the deceased by holding him by the collar. According to him the deceased was a nuisance.

Despite that denial we found him guilty of the lessor offence after we accepted the State witnesses’ evidence.

Mitigation

In mitigation Ms Shoko correctly submitted that the Court must first make a finding on the degree of negligence as per S v Wankie HH831/15. In this case the degree of negligence is slight. The accused struck the deceased once. This position was also taken by the State. We agree that the degree of negligence was slight. The accused used a clenched fist once and a half brick once.

We were urged to impose a  lenient sentence on the basis of the degree of negligence. Ms Shoko urged the Court to impose a custodial sentence with part suspended on the usual conditions and part suspended on condition of performance of community service as in the case of S v Ndlovu HB 42/24 which she said was on all fours with the case before us.

Unfortunately the case relied on has a different factual background from this case. In that case the deceased was the aggressor. He was not happy about the transaction he had entered with the accused and an altercation arose. The deceased produced a knife. The accused ran away. As if that was not enough the deceased pursued the accused along the way the accused picked a log and struck the deceased once. The deceased fell and died. Surely there is a limit to which a person may seek to avoid violence. The accused acted in self-defence in that case. The accused in that case also pleaded guilty to the charge. Those facts are quite removed from the facts before us . The case is therefore of no persuasive value.

It was also submitted in the alternative that there is an element of both intoxication and provocation. Both the accused and the deceased were intoxicated. It was suggested that we impose a sentence of 3 years of which half is suspended on usual conditions as in the case of S v Tengera HCC 27/24.

Aggravation

In aggravation the State produced the victim impact statement from one of the deceased’s relatives who detailed the financial and psycho social effects of the offence. The Court was urged to balance the triad as set out in the case of  S v Zinn 1969 (1) SA 537 (AD) Rumphf JA emphasised that it is incumbent for a sentencing court to apply its mind to what he described as being “the triad consisting of the crime, the offender and the interests of society. ”

It was submitted that a custodial sentence in the region of 8 years must be imposed in view of the office the accused held and the manner in which he committed the offence. He failed to control his temper particularly in dealing with the elderly deceased who could pass for his father. The accused was in his 40s.The accused was not contrite, he did not contribute towards the funeral or even pay any compensation nor even propose to pay.

Legal Analysis

The law provides for a sentence of a fine of level 14 or more or life imprisonment.

We took into account the submissions by both counsel. The accused’s status in the community is critical. He was a headman therefore an opinion leader for the young generation. He was supposed to lead by example. His conduct challenged our societal norms to care and respect the elderly. As a leader in that community he must have known that he led both the good and the bad ,it was his duty to be civil and temperate with both. He failed to do so. He sent a wrong message. This Court must show its displeasure by handing down an exemplary sentence.

A life was lost although the deceased was advanced in age he still had a right to life.  The victim impact statement showed that the family lost a pillar of strength. However the accused and his family will live with the stigma that he killed someone. That on its own is a sentence beyond what this court can impose. We must always bear in mind to temper justice with mercy a hallmark of civilisation.

The accused did not offer any apology let alone assist the deceased’s family. Courts recognise compensation and assistance to the deceased’s family or even the victim as mitigatory. In S v Hahlekiye HH-260-17 the court found that it was mitigatory that the accused
had met the demands of the family of the deceased for compensation by paying
the funeral expenses and part of the monetary compensation sought by the family.

The Court must not be swayed too much by the result of the accused’s conduct but by how he committed it. He is being punished for not being careful in dealing with the deceased. He had no intention to cause the death. He could have avoided the loss of life had he acted like the imaginary reasonable person would have done. In this case infact the accused was very patronising and highhanded towards this old man. Even if he was drunk the deceased remained a symbol of the elderly in society. The accused could have walked away. There was no evidence of physical violence by the deceased.

The following sentence is imposed.

6 years imprisonment of which 2 years imprisonment is suspended on condition within that period the accused does not commit an offence involving violence or causing the death of another of which upon conviction he is sentenced to imprisonment without the option of a fine.

Effective – 4years imprisonment.

National Prosecuting Authority, the State’s legal practitioners

Pundu & Company, the accused’s legal practitioners