State v Memory Nyika

### Preamble
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HH 137-13
CRB 1/13
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STATE

versus

MEMORY NYIKA

HIGH COURT OF ZIMBABWE

MUSAKWA J WITH ASSESSORS

HARARE, 16 January 2013 & 9 May 2013

Criminal Trial

B. Murevanhema, for the state

D. Mujaya, for the accused

MUSAKWA J: The accused stands charged with contravening s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The indictment alleges-

“In that on the 2nd day of August 2011 at 173 Glen Norah A, Harare, Memory Nyika unlawfully and  with intent to kill or realising the real risk or possibility that her act might cause death assaulted Charity MupamhangaMubaiwa all over the body with a cooking stick hereby causing injuries from which Charity MupamhangaMubaiwa.”

To this charge the accused pleaded not guilty. The background to the matter presents a sad set of events. The deceased was the child of the accused’s husband and another woman. The deceased’s mother fell ill and her brothers foisted the deceased on the accused through her husband. The deceased was said to be sickly and the accused’s husband clearly failed to look after the child. He did not provide for the child’s medical needs and simply left her in the care of the accused who was of no means.

On 2 August 2011 the accused’s husband, Nesbert Mupamhanga returned home from work around 10 p.m. The accused and the children were not at home. Having established that they were at the Police Station, he made follow-ups and met the accused on her way home. She had the deceased on her back whilst she carried the younger child in her arms.

This witness was not vey forthcoming in his testimony. Initially he gave the impression that he found the accused at home. He then enquired about the welfare of the children who were asleep. This, he said was a routine enquiry by a supposedly caring parent. He was told that the children were fine.

However, on account of the other version, he told the court that when he asked the accused about the cause for the visit to the Police Station she told him this was pursuant to allegations that she had assaulted the deceased. Surprisingly, he did not verify the circumstances leading to those allegations and he did not give convincing reasons why he did not. He gave the impression of an uncaring parent. For example, he attributed his failure to accompany the deceased for medical treatment to his busy work schedule, he being a commuter omnibus conductor. Surprisingly, he even failed to provide money for the medication that had been prescribed for the deceased.

The witness testified that the deceased had been foisted on him two months previously. He said he noticed that the deceased was reserved and hardly moved and appeared malnourished and was underweight. The morning after the accused’s visit to the Police Station he found the deceased dead. He then notified his landlord.

The witness also told the court that the accused had told him that the deceased had fallen on the doorstep and hit her head on the ground. As a result the deceased had bled from the mouth. He had never bothered to examine the deceased prior to her death.

Constable Anna Boterere testified that one morning in August 2011 she noticed a report of assault in the Charge Office diary. She endorsed the report in the Victim Friendly Log Book. She then went to the accused’s residence and arrested her. She took her to the Police Station together with the deceased. She noticed that the deceased had scars on her face and back. She subsequently compiled a docket on a charge of ill-treatment of a child.She learnt that the deceased died the day after she arrested the accused.

The witness also stated that the deceased would cry when she told her to go to the accused. The deceased responded to verbal commands although she did not hear her talk. The witness knocked off duty around 4 p.m. and left the accused in custody. She learnt about the deceased’s death on the following day when she wanted to take her for medical examination.

The next witness to testify was Molive Mukunyadze. She was a neighbour of the accused. She said she used to exchange greetings with the accused.

She also testified that the accused used to assault the deceased. She could not specify the occasions when this took place. However, she stated that this happened on several occasions. She saw this through the gate. Sometimes the accused would use sticks and on other occasions she used hands.

The one incident she particularised was when the accused assaulted the deceased so badly that passers-by stopped to observe. Firstly, the accused had assaulted the deceased with her hands. Later she used a stick and she counted four blows that landed on the back. She asked the accused why she was assaulting the deceased and her reply was that it was not her child. She later went to the Police Station to submit a report. She said she did not find any Police Officers. As a result she slipped an anonymous note under the door. She also testified that she never saw the deceased walking or talking.

The witness was subjected to brief cross-examination. She was not clear about the date of the assault which prompted her to lodge a report with the Police. However, she maintained that the day she made a report was the same day Police visited her residence. She was questioned why she never reported the assaults to the accused’s husband and she replied that it never crossed her mind.

The state also produced a post-mortem report compiled by doctor Agvero. In the report, the doctor noted bruises on the face, abdomen and legs. There was also subgalial hematoma of the scalp, skull fracture and oedema/haemorrhage of the brain. He concluded that death was a result of severe head injury due to assault.

The accused testified in her defence. She confirmed the testimony of her husband regarding how they got to take care of the deceased. In essence the child was forced on them. She consulted a co-tenant and together they went to the Police. She was instructed to return with her husband but the husband was indifferent as he said he had no time. She said the child was sickly but improved within a short period of time. Medication that was prescribed for the deceased was never bought as her husband claimed he had no money.

Although she denied assaulting the deceased on a regular basis she for the first time admitted assaulting the deceased once. This was on the day she was arrested. She used a switch plucked from a peach tree. She said she only assaulted the deceased on the legs. She assaulted the deceased as a way of inducing toilet training.

She stated that on the day of her arrest she was taking a bath when she was alerted that the deceased had fallen by the door. She bathed the deceased who was bleeding from the nose. As she prepared to take the deceased to hospital, Police Officers then arrived. She told them about the deceased sustaining injuries from a fall and they told her to feed her and accompany them to the Police Station.

Under cross-examination the accused somehow changed and stated that she did not assault the deceased on the 2nd August 2011. She was also adamant that she was not arrested by Constable Boterere. This is despite the fact that Constable Boterere’s testimony was not challenged during cross-examination. The accused said she could not dispute the bruises found on the deceased because she did not see them.

The court also sought to know why the accused used a switch on the deceased. She stated that she could not have used any other instrument in the circumstances. She further stated that it had been a long time since the deceased was failing to use the toilet. Therefore she wanted to teach her how to use the toilet.

In his address Mr Murevanhema submitted that the accused exceeded the bounds of parental discipline. There is evidence of abuse as testified by Molive Mukunyadze. He further submitted that given that the accused also admitted assaulting the deceased, albeit in the legs, it was inconceivable that the injuries noted by the pathologist could have been sustained from a fall. The accused had initially completely denied assaulting the deceased, but later departed from that line of defence. Adverse inferences should be drawn against the accused. Mr Murevanhema thus submitted that the accused should be convicted of culpable homicide.

Mr Mujaya had earlier on sought discharge of the accused at the close of the state case which application the court dismissed. The basis of such application was that no evidence had been led linking accused to the offence charged. In dismissing the application the court  reasoned that there was no merit in the submission that there was no evidence that the accused committed the offence charged or any other offence which might be a permissible verdict. Taking into account the provisions of s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] there was evidence of assault perpetrated on the deceased. It could therefore not be the case that there was no evidence of the commission of an offence on which the accused might be convicted.

Mr Mujaya had also submitted in the course of that application, that there was no evidence to prove how the severe head injury had been sustained. This was in reference to the post-mortem report which he said was not corroborated by the evidence led by the state. He also highlighted the discrepancy between the time Molive Mukunyadze claimed she witnessed the assault and when the accused was said to have been arrested.

Finally, Mr Mujaya submitted that if the court makes a finding of assault with a stick, it should also make a finding that there was no intention to kill on the part of the accused. In that event, he prayed for a verdict of culpable homicide.

After a consideration of the evidence led before this court it is pertinent to note that the accused regularly assaulted the deceased. Notwithstanding lack of particularity of the instances when this occurred, we accept the testimony of Molive Mukunyadze. She was a mere neighbour who had no motive to falsely incriminate the accused. In any event, her evidence was not challenged during cross-examination.

In passing, it is clear that the deceased was neglected by her biological mother, the mother’s relatives as well as her father under circumstances warranting a prosecution in terms of the Children’s Act [Chapter 5:06]. I would urge the prosecution to consider such action against the father taking into account that he failed to provide for her medication.

In terms of s 15 (3) of the Constitution of Zimbabwe, a parent, guardian or someone in loco parentis is permitted to inflict moderate corporal punishment on another person who is under the age of eighteen years. However, it follows that where corporal punishment inflicted on a young person results in injury or death, the conduct of the person who inflicts it becomes unlawful. This is so because such punishment ceases to be moderate.

See also s 241 of the Code. Even where a parent administers punishment on a child, there are certain considerations that must be taken into account. In this respect s 241(6) of the Code provides that-

“In deciding whether or not any corporal punishment administered upon a minor person is moderate for the purposes of this section, a court shall take into account the following factors, in addition to any others that are relevant in the particular case.

(a) the nature of the punishment and any instrument used to administer it; and

(b) the degree of force with which the punishment was administered; and

(c) the reason for the administration of the punishment; and

(d) the age, physical condition and sex of the minor person upon whom it was

administered; and

(e) any social attitudes towards the discipline of children which are prevalent in the

community among whom the minor person was living when the punishment was

administered upon the minor person.”

Coming to the present case it is accepted that the accused regularly abused the deceased by subjecting her to assault. This is based on the testimony of Molive Mukunyadze which was not challenged. Despite having initially denied assaulting the deceased, the accused also subsequently admitted assaulting her, albeit on one occasion. Even that one occasion she admitted was not justified as she used a stick. In any event she could not have sought to impart to the child toilet training by assaulting her. What worsened the situation was that the deceased was an unwanted sickly child who was imposed on the accused and her husband.

The physical abuse I have referred to is confirmed by the bruises that were noted on the deceased’s face, abdomen and legs.

The accused unlawfully assaulted the deceased as a way of instilling toilet training. In the process she used a stick and inflicted injuries that were noted in the post-mortem report. She should have realised that by using severe force against the deceased, death might result. Where an accused person deliberately assaults another person using a weapon he or she should realise the possibility of causing harm. It is immaterial in the present case that the accused did not realise the precise manner of death in the circumstances of this case.

Accordingly, the accused is found guilty of culpable homicide in terms of s 49 of the Code.

Dururu & Associates, accused’s legal practitioners