The State v Arimon Karidzamimba (a juvenile)

### Preamble
1
HH 810-18
CRB 70/18
THE STATE
versus
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THE STATE
versus
ARIMON KARIDZAMIMBA (a juvenile)

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 27, 28 SEPTEMBER & 22 NOVEMBER 2018

Criminal Trial

Assessors: Mr Barwa
Mr Chimonyo

A Masamha, for the State
M Kika & T Deme, for the accused

TSANGA J: The accused was charged with murder of his grandmother, Vhareta Deza, who died on the 19th of September 2016. The fatal assault is said to have been committed by the accused when he was a juvenile. He did not have a birth certificate at the time. According to the probation officer’s report the accused was born in 2001. He dropped out of school due to his parent’s inability to pay fees. He would therefore have been 15 at the time he committed the offence. He pleaded not guilty to the charge of murder.

He had met his grandmother\(^1\) one late afternoon on the 27th of August 2016 around 17 00 hours on her way home and accused her of be-witching him. He had immediately launched an assault on her with clenched fists on her chin knocking her down. He had continued assaulting her with booted feet causing injury to her jaw. He had initially been charged with assault later changed to a charge of murder when the deceased succumbed to her injuries some three weeks later. The assault had been witnessed by the deceased’s son from his garden. He had rushed to her rescue. The accused had fled but had been apprehended almost immediately by the village head. The deceased had been hospitalised for injuries sustained and had been discharged and succumbed to the injuries about a week after her discharge.

\(^1\) She was his grandmother within the extended clan context as opposed to being the deceased’s direct grandchild.


The accused’s defence was that he lacked the intention to kill and neither had he foreseen that death would result. From the evidence led, the crux of his legal defence was intoxication resulting from having smoked dagga which he said he had gotten from his friend Pardon.

Doctor Walter Nyazondo who conducted the post-mortem gave straightforward evidence. He told the court that in order to survive a human being needs to feed. In this instance, the accused had sustained a cut tongue and a dislocated / crushed left jaw and had been unable to feed. His conclusion on the cause of death was therefore a fractured lower jaw and the deep cut on the tongue which had resulted in her inability to feed. As a result of inability to feed hypoglycaemia i.e. low blood sugar in the body was also recorded as significant condition at the time of death. He explained to the court that humans need minimum levels of sugars in the body and in order to maintain those one has to eat. In this case the deceased was simply unable to eat. He was emphatic that the deceased could not have had diabetes as that would have long been dictated by the time she got to her age.

The deceased’s son Lucky Piroro also gave evidence. He told the court that although his mother was old, she enjoyed good health prior to the assault. The post mortem report estimated her age as 78 but the witness said she was in fact much older than that given that her first child was born in 1942. His evidence was that his mother had been discharged not because her condition had improved in any way, but because the doctors could do nothing for her. She had essentially been released for home based care. He too confirmed the extent and consequences of the injuries that had been recorded by the doctor as underlying the cause of death. In hospital they had tried to sustain life by feeding her through a tube as she had not talked, opened her eyes, or been able to feed from the day of the assault. When discharged they had been given a kit to administer fluids. Her situation had not changed.

He further gave evidence of what he had observed that day. He had rushed to intervene and the accused had started to assault him as well using fists and fly kicks. He had also tried to ascertain why he was assaulting his mother and had been told it was because she was bewitching him. He had observed his mother bleeding from the nose, ear, and mouth. Significantly, his observation had been that the accused was not himself. His behaviour was out of character. He told the court that the accused, after the commission of the offence, had told the police that he had taken dagga. Asked if he could say the the accused knew what he was doing, in one breath he said he did as he had planned the assault but in another breath told the court that he could to have known what he was doing. As he put it when asked

Q: “Would you say the accused knew what he was doing”?

A: “On that day he could not have known what he was doing. He seemed like he was possessed and the power he had was not of his age.”

The village head, Lister Kanyandura who had apprehended the accused also confirmed that the accused seemed clearly out of his mind when he stopped him. He knew the accused prior to this and knew him to be of good character. He too told the court that it was unusual and disturbing for the accused to behave that way. He equally confirmed that the accused had told him as they were walking back to the scene that he had smoked dagga.

Former Sergeant Madondo who was the investigating officer told the court that indeed the accused had mentioned smoking dagga but said that he had interviewed the said Pardon who denied giving him any. He also confirmed that the accused was said to have been of good character in the community.

As to the cause of death we were satisfied with the evidence from Dr Walter Nyazondo as well as Lucky Piroro that the fractured and crushed jaw as well as the cut tongue sustained from the assault rendered her unable to eat. The causal connection between the assault and the resultant death was clearly explained and efforts by the accused’s counsel to minimise or even dismiss the effects of the assault and the impact on the deceased’s death as farfetched were simply argumentative.

In closing submissions, the State pressed for a finding of murder in terms of s 47 (1) (b) conceding that a charge of murder with actual intent was not sustainable. It was also argued that a lesser charge of culpable homicide would not be proper because there was no negligence in this regard as negligence could only arise where one does not intend to cause harm. In this case the accused is said to have deliberately attacked the deceased.

The defence, on other hand, argued that the test of foreseeability is a subjective one and argued that the State was missing this crucial point. Section 12 of the Criminal Code defines a subjective state of mind 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.

In other words, the court is enjoined in no uncertain terms to decide at the relevant time a person possessed the state of mind subjectively. It must also take into account all relevant factors that might have influenced that state of mind.

At the heart of the accused’s more meaningful defence was that he lacked the requisite intention to kill. In his defence outline he indicated that he would lead evidence to his state of mind and why he did not realise the real risk or possibility that his conduct would lead to death. The nature of that defence emerged not only from the state witnesses but from accused himself as being centred on the fact that he attributed his behaviour to fact that he had smoked dagga.

The State therefore also argued that since accused’s main defence was voluntary intoxication whereby he acted under the influence of drugs, the case fell to be dealt with in terms of s 222 of the criminal code. It provides as follows:

**222 Voluntary intoxication leading to unlawful conduct**

If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility (hereafter in this section called “the crime originally charged”) and it is proved that:

(a) the accused was voluntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime originally charged; and

(b) the effect of the intoxication was such that the accused lacked the requisite intention, knowledge or realisation; he or she shall be guilty of voluntary intoxication leading to unlawful conduct instead of the crime originally charged and liable to the same punishment as if

(i) he or she had been found guilty of the crime originally charged; and

(ii) intoxication had been assessed as a mitigatory circumstance in his or her case.

He was charged with murder under s 47 (1) (b) – an offence which requires knowledge and realisation of real risk or possibility that death may result. What s 222 does is to recognise that a person who is found to have been truly intoxicated at the time cannot possibly have the requisite intention, knowledge or realisation to commit the crime. As such, where the court finds that an accused was truly intoxicated as to be incapable of forming an intention or realisation of the consequences of his conduct then such a person is to be found guilty of voluntary intoxication leading to unlawful conduct.

Voluntary intoxication cannot act as a defence or in mitigation of sentence to a crime requiring proof of negligence. Voluntary intoxication leading to unlawful conduct is a strict liability crime. There is no need to prove that the accused acted intentionally or that he foresaw the risks that would pursue if it is proved that he truly lacked the mental capacity.

The issue in the final analysis really centres on whether even though he had taken dagga as he said the accused had the requisite state of mind when he attacked the deceased. The onus was on the accused to prove. See S v Shambare and Anor HH 65/18.

The definition of intoxication in s 219 of the Criminal Code makes it clear that it means intoxication resulting from the ingestion of any alcohol or drug. From the accused’s own evidence in chief it was clear that he was voluntarily intoxicated. He stated categorically that he bought the drug from Pardon. The State is therefore correct in submitting that s 222 should apply. It is this provision that deals with voluntary intoxication and the lack of a requisite state of mind.

Lucky Piroro and Lister Kanyundura who interacted with the accused soon after he committed the crime were both agreed that his conduct was out of character. Lucky Piroro even described him as behaving as if possessed and gave a very vivid description of how he was violent and uncontrollable when he tried to stop him, with strength beyond his age. The accused himself when asked if he believed in witchcraft said he did although he did say now after the event that he did not believe his grandmother was a witch. This court with its assessors is in agreement that from the evidence led it was apparent that right from the onset the accused said he had taken dagga. We find that if he was already paranoid it is indeed very possible that an aggressive temperament may have been unleashed by taking dagga. In this instance the accused took dagga and caused harm whilst in that state. That is all that is necessary to be proved.

The import of s 222 on voluntary intoxication whose effect was such that the accused lacked the requisite intention, realisation or knowledge was explained in S v Marinata Masina 2010 (2) ZLR 498 (H) as follows:

In fact a close examination of Chapter (xiv) part (iv) of the Code reveals that the legislature altered the common law position on voluntary intoxication to the extent that, that defence can never result in the reduction of a murder charge to that of culpable homicide. Section 222 of the Code introduced a new offence of voluntary intoxication leading to unlawful conduct, where the effect of the intoxication leads to the accused lacking the requisite intention, knowledge or realisation required to commit the crime originally charged. Such an accused would still be “liable to the same punishment as if;

(i) he or she had been found guilty of the crime originally charged; and


(ii) intoxication had been assessed as a mitigatory circumstance in his or her case.”

This means the new offence of voluntary intoxication leading to unlawful conduct, is not the same as culpable homicide as culpable homicide does not attract the same sentence with murder (the crime originally charged).”

**Verdict:** We find the accused guilty of voluntary intoxication leading to unlawful conduct.

**Mitigation aggravation and sentence**

The accused has been at Kadoma Training Institute since June 2016. In mitigation, his lawyer produced a second probation officer’s report which captured his progress since his admission there. Whilst the report noted that he had been involved in two incidents of violence upon his admission, he was now said to have changed for the better.

Since he was still a juvenile who committed the offence when he was only 15, the issue of imprisonment was highlighted by his lawyer as a punishment of very last resort. Our Constitution in s 81(2) recognises this principle and in this regard echoes the various international and regional instruments on children’s rights to which Zimbabwe is a signatory. Our courts too have remained alive to the reality that imprisonment is a punishment of last resort where juveniles are concerned. See cases such as S v Zaranyika 1995 (1) ZLR 270; S v Mavasa 2010 (1) ZLR 28 (H); S v FM 2015 (1) ZLR 56 (H); S v L Malanga HH 218/93; S v Chitanga HB 70/15 S v LN Juvenile HB 96/16; S v Homela HB 214/15. The emphasis therefore was that whatever sentence meted out should be rehabilitative in nature and be influenced by the best interests of the child as the yardstick. The fact that he had shown remorse for his conduct was equally emphasised.

His personal circumstances were highlighted in the probation officer’s initial report which was done in July 2017. He had dropped out of school because of lack of funds. He was a withdrawn child who lacked confidence. He was a cattle herder at the time. His family also embraced traditional beliefs and religion which may have impacted on his belief in witchcraft. These personal circumstances are important considerations in his case in arriving at an appropriate sentence for a juvenile.

However, arriving at a suitable punishment this court is also enjoined to look at the original crime charged were it not for the finding of voluntary intoxication leading to unlawful conduct. This was murder in terms of s 47 (1) (b).


Given his age and the circumstances surrounding the commission of the offence, the accused is appropriately sentenced as follows:

1. 5 years imprisonment wholly suspended for five years on condition that the accused does not during that time, commit any crime involving violence for which he is sentenced to a term of imprisonment without the option of a fine.

2. The accused is to be returned to Kadoma Training Institute where he is currently detained until he attains the age of 18 and is thereafter to be released into the custody of his parents.

National Prosecuting Authority, State’s Legal Practitioners
Justice for Children, Accused Person’s Legal Practitioners
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