Judgment record
State v Clifford Mararahanda
HH 542-18HH 542-182018
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STATE
versus
CLIFFORD MARARAHANDA
HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 16, 17 & 26 July 2018
Assessors: Mr Musengezi
Mr Jemwa
Criminal trial
D Chesa, for the State
T Mutsekwa, for the accused
TSANGA J: The accused was charged with the murder of his wife whom he was said
to have assaulted with an iron bar on the 15 th of May 2017 resulting in her death. He pleaded
not guilty to murder but was willing to plead guilty to culpable homicide. The trial proceeded
on the charge of murder.
The backdrop of the State’s case was that the deceased and the accused had been
customarily married for about 12 years. They had a misunderstanding on the 12 th of May
when the accused had confronted his wife about her alleged infidelity. She had left home that
night and gone to her sister’s house. On the 15 th of May the accused had approached the
deceased’s sister husband and demanded her back. At the matrimonial home some
discussions had ensued at which the brother-in-law, Kingston was present. The accused had
taken his wife to their room and had locked the door and thereafter had assaulted her with a
metal bar. The door had had to be broken down to enter. The accused had been apprehended
and taken to the police station and on the way there he had tried to commit suicide by taking
some substance.
The essence of accused’s defence outline was that the deceased had met an untimely
death as a result of an altercation over her infidelity. When he had confronted her about it and
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had suggested that they go to the deceased’s rural home for the matter to be addressed by her
brothers, the latter had refused to go aided and abetted by her sister. The two had hurled
insults at him and said he was not the first to be cheated upon. The accused had then asked
her to come and get her belongings with her cousin sister. Back at their home the deceased
had remained unrepentant and the husband to cousin sister had tried to resolve their
differences. The response from the deceased that he was lucky to have found out about the
affair had angered him. He had struck the deceased with his hand and she had picked up the
iron bar to strike him. He had blocked the strike, taken the bar and hit her twice on the base of
the neck. The deceased had cried out and Kingston had come into the room and called his
friend before taking the accused to the police station. He had left his wife on the bed alive
and crying. He had been advised of her passing whilst in police custody.
The admitted evidence
The evidence of four of the state’s witnesses was admitted by consent in terms of
s314 of the Criminal Procedure and Evidence Act and was therefore taken as it appears in the
in the summary of the state case.
From the evidence of Elifigio Mapiriyano who was a co-tenant at the residence it was
established that the deceased had screamed whilst ton the room with the accused. He had
gone into the room and assisted Kingston Masodzi to apprehend the accused. He had also
seen the accused trying to swallow an unknown substance.
The Evidence of Itai Dzinoreva the landlady of the residence, established that on the
11th of May the accused and the deceased had quarrelled at about 21:00 hours and the
deceased had said the source of their misunderstanding was financial. On the 12 th of May the
accused had also threatened to stab Brian Dzinoreva with a screw driver whom he said was
having an affair with his wife. On the 15 th of May at around 11:00 the accused, the deceased
and Kingston Masodzi had some discussions before the latter came to sit in the dining room.
It was whilst he was seated there that the deceased had screamed and Kingston had gone into
the room to asset her.
Frankson Masiye was the medical doctor who examined the deceased and pronounced
her dead. Lastly, Kadia Mubako was the ZRP officer who had recorded the accused’s warned
and cautioned statement.
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The post mortem report prepared by Dr Roluto Frou was also admitted by consent as
exhibit 1. It showed that the deceased’s death was due to severe vertebra oedema /subdural
haematoma subarachnoid haemorrhage/head trauma due to blunt trauma.
The accused’s warned and cautioned statement was also admitted as exh 2. In denying
the charge the accused stated that he did not think that assaulting the deceased would result in
her death. He said he was defending himself because the deceased wanted to assault him with
an iron bar. He also said that he had assaulted the accused three times on the back and on her
head because she was in love with one Brian Dzinoreva.
The State’s oral evidence
Against the above backdrop of the accused’s defence outline, and the State’s admitted
evidence, Kingston Masodzi gave evidence. The essence of his evidence was that on that
fateful day he had been called to the accused’s house to try and resolve a dispute which had
its origins in a plate of chips which the accused had found some two days earlier. The
accused had enquired where the chips had come from as he had not left her any money that
could have bought those chips. She had told him the chips had been bought for her by her
sister. This earlier quarrel had resulted in the accused’s wife seeking sanctuary with her
cousin who was Kingston’s wife.
On the day in question, he had been called by the accused who informed him that his
wife was refusing to go into the room that the family stayed in. He had heard the deceased
tell the accused that the chips that had raised the shindig were not an issue and that the fact
that they had been on the table showed that she also expected the accused to partake of them.
He had talked to both of them with a view to settling the quarrel. They had gone into the
house. He had heard her asking for forgiveness for the chips which she said had been from
her sister. The accused had then hugged his wife whilst they were in the bedroom and had
said a prayer on the basis that everything requires God. After the prayer, he said he had
forgiven his wife. The witness had assumed that they had reconciled. He, Kingston had been
told by the accused to go and sit in the lounge as he wanted to talk to his wife alone. Whilst
there that his when he had heard the deceased scream. He had tried to open the door but it
was locked from inside and he had had to kick the door in. Once in, he had tried to restrain
the accused who was holding an iron bar and narrowly missed him in his bid to now attack
the witness. He saw that the deceased’s head, towards the back, had been split with the iron
bar which was produced in evidence as exhibit no3. She was lying face down. Once he had
managed to restrain the accused, he had asked one Elifigio to accompany him to the police
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station with the accused. On the way there, the accused had removed a small packet from his
pocket and tried to swallow something. He said it smelt like rat poison. He said that he had
later learnt from the accused’s 11 year old daughter that the accused had sent her to buy the
rat poison. He also narrated how when he had initially gotten to the house that morning, he
had found the accused trying to attack the deceased and she had tried to get away from him
by seeking refuge behind him. He also told the court he knew the family as always having
quarrels and disagreements about money and poverty. At one time, he had even invited the
accused to join him as a miner but he had not shown any interest. He was a taxi driver.
The accused’s evidence
The accused’s evidence sought to shed further light on how the dispute that led to the
deceased had its origins in some chips that he found with the deceased. He zeroed on in the
fact that his wife was having a relationship with the landlord’s son as evidenced by the fact
that on one occasion he had taken his wife’s phone and the landlady’s son Brian had called
on that phone. When he answered, the call had been immediately cut off. Brian had later
apologised for his indiscretion in calling his wife as he said that he was aware that there are
men who do not like their wife being called. They had left it at that. This had taken place a
month earlier. The accused did not say that he had found anything suspicious on his wife’s
phone that pointed to a relationship besides the fact that Brian had called whilst he had his
wife’s phone with him.
Two days prior to the fateful day, the accused said he had gone to the filling station at
about 8pm to buy fuel for his car. Whilst there, he had seen Brian buying some chips and
chicken and thereafter make a call in which he had asked if all was clear. With the backdrop
of what had happened before, he said he had concluded that Brian was talking to his wife. He
had then gone on to leave the petrol container in his car and had followed behind Brian. He
clarified that he come into close proximity with Brian and estimated the distance at about 2
metres but maintained that Brain had not seen him. He had then hidden behind a hedge for
about 15 minutes watching as Brian knocked on his door.
He had stealthily moved to a window where the curtain was slightly opened and had
knocked on the window. There he had seen Brian go out of the room followed by his wife.
Materially, he said had observed from the vantage of the curtain-opening that Brian was tying
his trousers and fixing his belt as his wife had come to open the door for him. When his wife
opened the door and he had just stood there not knowing how to start the conversation. He
could smell the chips and decided to hunt for them by checking the kitchen unit, the fridge
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and the wardrobe before finally unearthing the chip container beneath the bed. He had placed
this evidence on the table and had asked his wife where the chips had come from and she had
told him the chips had been bought for her by her sister. He had confronted her with the fact
that they had been bought by Brian and that he had heard their conversation when Brian said
she should open the door quickly as he did not want his mother to see him go into their room.
He had slapped her and she had screamed. Brian’s mother had come and upon conversing
with her she had let out that she had suspected the two were having an affair.
In the course of these revelations his wife had left the room on the pretext of going to
the toilet but had instead left and gone to her sister’s house. He told the court that with
hindsight, he had also realised that there had been an occasion when Brian’s mother had
asked the deceased to wash Brian’s blankets and some of Brian’s clothes – another pointer to
an affair.
He told the court that Kingston had come that night to inform him that his wife had
come to their residence and that he should come. The accused had gone there but had not
resolved much as he said that if his wife could not explain there was no need for him to be
there. He had gone back home that night and had phoned his in-laws who said they should
come to Chegutu.
He had gone back to Kingston house the following morning and had seen Kingston
wife who had said it was not necessary to go to Chegutu as the deceased’s parents were late.
The suggestion that the brothers’ in-law intervene had also failed. He had gone back home
again that day. On the third day he had gone back again at around 10am and had again found
Kingston wife at home. He had told her that he deceased should come and get her belongings
so she could leave him alone. Kingston wife had phoned her husband who had agreed to
come after it had been explained to him what had been agreed to. When they all arrived at
accused’s place they had started to pack her belongings. It was then that Kingston had
suggested that they reconcile. He had told Kingston that there was nothing to talk about as
what his wife had done was an embarrassment, and, furthermore, she had refused to go for
family talks. Kingston had indeed gone into the landlady’s sitting room at accused’s request.
Thereafter the deceased had told him that she did not want to hear about the matter
and that he was fortunate enough to find out as this was something taking place on a daily
basis. The accused said he had been hurt by these remarks and had slapped her again and told
her then that he was going to resolve the issue physically. He said his wife had then picked up
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an iron bar that was in the house and tried to attack him with it. It was then that he had
grabbed that bar and struck her with it at the back of her neck.
The accused denied trying to assault Kingston. He also denied that he had tried to
swallow something on the way to the police station. He had first heard of that issue when
they were at the police station. His explanation for the difficulty in opening the door was that
it locked from inside and could not open from outside.
THE LAW
Murder is defined as follows in our Criminal Code:
“47 Murder
(1) Any person who causes the death of another person
(a) intending to kill the other person; or
(b) realising that there is a real risk or possibility that his or her conduct may cause
death, and continues to engage in that conduct despite the risk or possibility;
shall be guilty of murder.”
The issue in reality is the accused’s intention at the time that he attacked the deceased
and what was his state of mind.
The Criminal Code defines a subjective state of mind in s 12 as follows:
“12 Meaning of subjective state of mind
For the purposes of this Part, a subjective test for a state of mind is a test whereby a
court decides whether or not the person concerned actually possessed that state of
mind at the relevant time, taking into account all relevant factors that may have
influenced that person’s state of mind.”
Intention is captured in the criminal Code as follows:
“13 Intention
(1) Where intention is an element of any crime, the test is subjective and is whether or
not the person whose conduct is in issue intended to engage in the conduct or
produce the consequence he or she did.”
As stated in S v Mugwanda 2002 (1) 574 (S) citing HOLMES JA in the case of S v
Sigwahla 1967 (4) SA 556 (A), intention is to be unearthed from the circumstances of the
case.
“Subjective foresight, like any other factual issue, may be proved by inference. To
constitute proof beyond reasonable doubt, the inference must be the only one which
can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that
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subjectively the accused did not foresee, even if he ought reasonably to have done so,
and even if he probably did so.”
The concepts of intention and realisation of risk have also been termed dolus directus
and dolus indirectus- in other words direct and indirect intention.
The author Jonathan Burchell, in his book Principles of Criminal Law1 defines dolus
directus or direct intention thus:
“This is intention in its ordinary grammatical sense: the accused meant to perpetrate
the prohibited conduct to bring about the criminal consequence. This type of intention
will be present where the accused’s ‘aim and object was to perpetrate the unlawful
conduct or to cause the consequence’ (dolus directus) even though the chance of its
resulting was small.”
He further defines dolus indirectus as follows:
“This form of intention exists where, although the unlawful conduct or consequences
was not the accused’s aim and object, he or she foresaw the unlawful conduct or its
consequences as certain, or as substantially certain, or virtually certain”
See also S v Mhako 2012(2) ZLR (H) 73 where common law concept of “constructive
intent” was discussed in so far as it has been replaced by the term “realisation of risk or
possibility” in the Criminal Law Code [Chapter 9:23].
The murder had occurred some two days well after his purported unearthing of Brian
with his wife. Whilst he said he was angered by her response whilst in the bedroom on the
fateful day, materially the accused’s explanation for the deadly attack some two days later
was not provocation but self-defence. The accused said he acted in self-defence as his wife
wanted to attack him with a metal bar. This was his explanation for the attack. Defence of the
person is a partial defence to murder which can result in a finding of culpable homicide
where the means used to avert the attack are lawful and reasonable under the circumstances.
For defence to be available in terms of s 253 of the Code there must be:
a) an unlawful attack
b) which had commenced or was imminent
c) and conduct must be necessary to avert the unlawful attack
d) the means used must be reasonable
LEGAL AND FACTUAL ANALYSIS
1
Jonathan Burchell Principles of Criminal Law (Juta) Fifth Edition 2016 at p350
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As regards Kingston’s evidence, defence counsel raised the issue of its credibility
given that he denied knowing what the real dispute was about besides the issue of chips. He
also told the court that he had been to the accused’s house that morning upon being
summoned and had not seen the accused or his wife two days earlier. An examination of
accused’s own defence outline appears to support Kingston’s version word for word. In
paragraphs 5, 6, of his outline when he complains of the deceased’s actions and that of her
cousin sister there is absolutely no mention of anything that Kingston did or said in those key
paragraphs. The first mention of the appearance of Kingstone is in paragraph 7 who it is said
was not there and whom they clearly had to wait for. Kingston had told the court that he is a
miner he was away and had been summoned to come. Our conclusion was that he was clearly
telling the truth that he had been called. If the accused interacted with Kingston’s family prior
to the fateful day, it was with Kingston’s wife and not Kingston himself. If he heard that the
dispute had emanated over some chips and allegations of infidelity then that is what he was
told. He could not have vouched that the dispute was about infidelity as only the accused
knew if that is what the dispute was about.
In reality certain aspects to the chips story as narrated by the accused raised some
improbable events. Our judicial system has the safeguard of a judge sitting with two assessors
in order to decide questions of fact. His story was not consistent with common sense
behaviour. From what he said it made little sense to us that the accused would have gone on a
detective spree for a packet of chips in order to prove an affair when according to his own
evidence he had in fact seen Brian go into his wife room and emerge from there whilst
zipping his trousers. Whilst the accused cannot be held in negative light simply because he
did no adhere to stereotypical behaviour, still his behaviour was not consistent with common
sense conduct. His assertion that he did not know where to start is not true. What greater
evidence could there be of a sexual tryst than catching a man red handed. To us the story of
bumping into Brian at the petrol station and then following close behind him even being as
close to him as a mere two metres as he said, was an entirely contrived story. What we found
to be true was that he had come home and found his wife with chips which he had not bought
himself. He had confronted her about it because he clearly had his suspicions about Brian.
These are not uncommon. One of the consequences of multiple families living in
overcrowded domestic spaces is indeed these constant fears and suspicions of infidelity. That
the accused had his suspicions about his wife’s infidelity we found to be a fact.
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The accused’s explanation for his conduct was that his wife picked up the bar to
assault him. However, even this version of what transpired makes little sense when we look
at the version of events that unfolded that morning. Kingston had found her refusing to enter
the room and also she had sought shelter behind him from being assaulted by the accused. He
was the one who had called her to come and collect her things. The accused himself admitted
that he had slapped the deceased after she had more or less told him to stop being a cry baby
over the chips issue. In his own words, he had also told Kingston that there was nothing to
reconcile because his wife’s actions were embarrassing.
His gestures at hugging and praying were a mere ruse to give the impression that he
was in a forgiving mood. He had deliberately gotten Kingstone out of the room before putting
his full throttled attack in motion. It must be recalled that two days earlier the deceased had
escaped from the accused. When Kingston arrived, he had found her refusing to go on to the
room. If anyone was defending themselves, then it was his wife who was at that time
protecting herself from assault. It was the accused who had closed the door which he claimed
automatically locked from inside. Yet when she screamed, he had made no effort to open the
door. Thus even if we assume for a moment that his wife genuinely wanted to attack him, it
cannot be said that there was no avenue for retreat at all as Kingston was sitting in the room
and accused could easily have opened the door for him to come in. Yet he had time to take
the bar and strike at least two or three times. He had been the one to in fact instigate the
violence. The blows to the head had been definitive and certain. Our finding was that the
facts as narrated by the accused did not support his claim that the deceased at the fateful point
had been the aggressor who had tried to attack him. Furthermore, the very claim that his wife
tried to attack is also suspect for the reason that if he struck her at the back of the head she
could not have been facing him but must have been facing away from him.
What we found beyond reasonable doubt was that at the time of the attack his
intention was clear. It was to kill the deceased. He had cleared the room of Kingston and
prevented entry. The nature of the attack on the head and the metal weapon used, as well as
the number of blows all show that he intended to inflict deadly blows. Her head had been
split. Had the door not been broken down he would have inflicted more blows. His wife had
not been the aggressor at that time or at any time. From his own evidence it was clear that the
physical violence had come from him. The accused himself had declared that he would finish
the issue physically which he had.
Accordingly we return the following verdict:
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The accused is guilty of murder in terms of s 47 (1) (a) of the Criminal Code.
Sentence
The accused was said to be a first offender with two minor children whom he was
looking after with the assistance of his parents. These mitigatory facts though important gain
less traction in view of the seriousness of the offence which he has been found guilty of. As
the State correctly argued this was a wanton loss of life and these cases seem not to abate.
The murder though not carried out under aggravating circumstances was still
deliberate. The deceased was only 28 years old at the time and from calculations had been
with the accused from a very tender age of 15. She had virtually given him her life. The State
called for a sentence of 25 years. In the State v Robert Tevedzayi HH 206-18 the accused who
was also found guilty of murder in terms of s 47(1) (a) under similar circumstances received a
sentence of 35 years. The circumstances in that case were admittedly more aggravatory than
in the present case as a reading of that case will show.
In the circumstances the accused is herein sentenced to 25 years imprisonment.
National Prosecuting Authority, State’s Legal Practitioners
Chikwengo and Taongai Law Chambers, Accused’s Legal Practitioners (Pro Deo)