THE State V Linda Sengwe

### Preamble
1
HH 138-13
CRB 147/12
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THE STATE

versus

LINDA SENGWE

HIGH COURT OF ZIMBABWE

MUSAKWA J WITH ASSESSORS

HARARE, 31 October, 1, 2 and 8 November 2012 and 8 May 2013

Criminal Trial

M. Mugaviri, for the state

C. Daitai, for accused

MUSAKWA J: The accused is charged with the murder of Vengai Mabika. The incident took place on 1 March 2012 at house number 1577 Lusaka, Highfield in Harare where the accused resided.

The deceased was husband to the accused. The two had been married since 2006. It is common cause that the deceased was associated with two other women.

The background to the tragic event is a sad one as narrated by the accused. Her only child with the deceased died in 2007. Following that sad development she failed to conceive again. This resulted in her being physically and emotionally abused by the deceased. At one stage she was battered and only regained consciousness at the hospital. Following the deceased’s detention for the assault, the accused relented as she felt she might be worse off without someone fending for her. As a result, she withdrew the charge of assault.

Notwithstanding the withdrawal of the charge she continued to be subjected to abuse. She sometimes reported to her uncle as well as her mother in-law. It does not appear that she got much help as the mother in-law told her to endure as she had also been in a similar situation. On one occasion after being assaulted she sought refuge at her uncle’s place until her father in-law and the deceased came to apologise. She said she only went back with the deceased after the father in-law gave personal assurances that he would see to it that she was not mistreated again. This was obviously not to be, as things later turned out.

On the fateful day the accused had borrowed an axe from the deceased’s younger brother, Kennius Mabika. This is because there had been a power cut and the accused needed to split some logs for firewood. She used to borrow the axe on previous occasions. On the day in question she did not return the axe. It was placed against the wall behind the door.

The accused told the court that during the night the deceased returned home drunk. That is when two women came to their room. They turned out to be an aunt to a woman the deceased had paid lodgings for in Westgate. It appeared the deceased had borrowed money for rentals from the aunt and reneged in repaying and taking care of the niece. This was the gist of the exchanges between the aunt and the deceased.

According to the accused the aunt then indicated that they had brought the deceased’s clothes. The deceased was told that they did not want to associate with him any more. The accused in turn told the women of another woman in Kuwadzana.

After the women had gone the deceased took issue with the accused. He told her his mother had failed to reign him in. The deceased then assaulted the accused for embarrassing him.

The accused seemed to confuse the above incident as having taken place on the day she axed the accused. In another breadth she said on the night in question she asked the deceased why he had assaulted her over the clothes that were brought by Nancy and her aunt. She was assaulted severely but did not cry out. Later after going to sleep the deceased woke her up and told her she had brought nothing. She was made to sleep on the floor.

Later she woke up after the deceased had urinated on her. He then told her that if she did not die that day she would never die. She asked to go outside as the deceased had the key but he refused. They later slept, with the accused sleeping on the floor whilst seated.

The deceased later woke her up and told her to do laundry as he had decided that she should go to his rural home. This was around 3 a.m. After the accused had soaked the clothes the deceased asked about those that had been brought by Nancy and her aunt. He directed her to burn them as they may have been cursed.

Soon after she had burnt the clothes the deceased asked why she had done so. He scolded her and told her she did not reason. He then took the axe and lifted it intending to strike her. The accused managed to disarm the deceased who fell down in the process. As the deceased tried to get up the accused struck him on the head. Although she claimed to have struck the deceased three times on the head, the post-mortem report noted five wounds. The accused said she confirmed the five wounds in her confirmed warned and cautioned statement because that is what Police Officers told her to state in order to conform with the pathologist’s findings.

The accused said she struck the deceased because he had threatened her with death as he wielded the axe. She said she was also angry and she panicked after the first blow. This is because the deceased tried to get up after the first blow.

Despite the accused and deceased sharing the house with other tenants, the commotion did not rouse anyone. It was when a co-tenant,  Bennedic Mapako who was about to work up in preparation to go to work who heard his name being called out by the accused. The accused went and knocked at his door and called out that someone was attacking the deceased with an axe.

Bennedic Mapako armed himself with an iron bar and proceeded to the room occupied by the accused and the deceased but he did not see any intruder. Instead, he saw the body of the deceased lying lifeless on the blankets on the floor. The deceased was clad in his undergarment and T-shirt. According to this witness there was no sign of current bleeding. The witness then took the accused to his room where he locked her in. Thereafter he went to make a report at the Police station.

As can be noted the direct evidence regarding how the deceased met his death came from the accused. The post-mortem report noted five wounds in the head (frontal area and the face) and resultant fracture of the skull. The cause of death was given as hypovolemic shock due to assault.

A confirmed warned and cautioned statement recorded from the accused was produced as part of the state case. The statement reads as follows-

“I admit to the charges being levelled against me. I striked (sic) Vengai Mabika with an axe five times after he had been abusing me. He also wanted to take me to his rural home, whilst he remained with another woman whom he was renting for in Kuwadzana. He also told me that he would take all my household property to his second wife in Kuwadzana. That is all.”

The accused recounted several other incidences of abuse at the hands of the deceased. She said the abuse started after the death of their child when she could not conceive again. Apart from telling her mother in-law and uncle, she chose to keep the abuse to herself and give a semblance of marital harmony. Even Bennedic Mapako confirmed that he never witnessed any conflict between the accused and the deceased. Given the frequency and severity of the assaults as recounted by the accused, we would have doubted Bennedic Mapako’s evidence on this aspect but then, the accused confirmed that she preferred not to tell the co-tenants and neighbours about her marital tribulations.

The only incident that Bennedic Mapako recalled was when the deceased called him from Rusape where he was working. The deceased had asked the witness to check whether the accused was in their room as they had had some argument. The deceased had expressed disquiet that the accused might commit suicide. The witness did not manage to see the accused as the door was locked.

Mr Mugaviri submitted that the accused should be found guilty as charged. This is because the moment she dispossessed the deceased she was no longer in danger. He also queried why the accused struck the deceased several times on the head. This, according to Mr Mugaviri imports intention.

On the other hand Mr Daitai submitted that the defence advanced by the accused should be sustained. According to him, it is illogical to suggest that the means used by the accused were not commensurate with the danger posed to her.

Mr Daitai further submitted that the court should not adopt an armchair approach. It must place itself in the shoes of the accused. Mr Daitai cited the case of Mandizha v S SC 200/91 in which self-defence succeeded as a full defence on appeal.

Section 253 of the Criminal Law (Codification and Reform) Act [Cap 9:23] provides that-

“(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if

when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and

his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she, believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack, and

the means he or she used to avert the unlawful attack were reasonable in all the circumstances;

and

(d) any harm or injury caused by his or her conduct

(i) was caused to the attacker and not to any innocent third party; and

(ii) was not grossly disproportionate to that liable to be caused by the unlawful

attack.

(2) In determining whether or not the requirements specified in subs (1) have been satisfied in any

case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.”

In terms of s 253 the defence will partially succeed where an accused person meets all the other requirements save where the means used to avert the attack are not reasonable.

In the case of Mandizha v S supra the appellant was convicted of the murder of his father and sentenced to five years after extenuating circumstances were found.

In that case it was accepted that the deceased had a volatile temperament. Apart from his unpredictable nature, he was uncaring to his family. At one stage he had brutally assaulted the appellant’s mother.

On the fateful day the appellant had sought to discuss some family problems with the deceased. However, the deceased had not responded to the appellant’s knocks. As the appellant went away, he was attacked with an iron bar. After wresting the iron bar from the deceased, the appellant was attacked with an axe. The appellant, in turn struck the deceased three times on the head with the sharp edge of the iron bar.

In considering the requirements of self-defence GUBBAY CJ cited the case of Phiri v S SC 190/82 in which the following was said-

“It is trite law that one must assess the reasonableness of a person’s behaviour when he is acting in self-defence, not in the rather rarefied atmosphere in the court, but one must look, even though objectively, at the situation as it existed at the time and in relation to the particular person one is considering.”

The Supreme Court also referred to the cases of S v Mukonoto 1971 (2) SA 319 (AD), S v Ntuli 1975 (1) SA 421 and Moyo v S SC 45/84. It went further to hold that regard had to be had to the character and nature of the deceased as this was relevant in considering what went on in the appellant’s mind at the time of the offence.

In the present matter we accept that the accused used to be abused by the deceased. Despite the abuse she stuck to the marriage. She even withdrew a charge of assault against the deceased in the fear of losing out. One can discern a “Stockholm Syndrome” scenario. Because the accused did not want the deceased to be prosecuted, she ended up seeking help from the Community Relations Section of the Police Force. She produced one such letter in which the Police invited the deceased to their office.

Although the testimony of what happened at the critical time emanated from the accused, two pieces of evidence negative her defence. The first such is the evidence of Bennedic Mapato. The accused called out to him that someone was attacking the deceased. When he responded to the distress call he saw no intruder. His observation was that the deceased’s body did not show signs of current bleeding. The accused conceded that she lied about there being an intruder. She claimed that she feared that if she told Bennedic Mapato the truth he would assault her. That is very unconvincing. Why would she not tell Bennedic Mapato that she was about to be attacked by the deceased and she killed him in self-defence? The probability is that she was not under attack.

If there was any doubt on this finding, it is dispelled by the evidence in the form of the accused’s confirmed warned and cautioned statement. When this statement was produced at the opening of the state case, there was no objection from the defence. The statement, though brief clearly tells a confession to the murder by the accused. In her own words the accused stated that she killed the deceased as revenge for the abuse she used to suffer at his hands. In addition, she felt spited by the fact that the deceased was transferring affection to another woman to whom he intended to give the household effects used by the accused whilst the accused was consigned to the rural home.

It must be noted that a confirmed statement is admissible against its maker upon mere production by the prosecutor unless the accused proves that it was not freely and voluntarily given. In this respect s 256 (2) of the Criminal Procedure and Evidence Act [Cap 9:07] provides that-

“A confession or statement confirmed in terms of subs (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof:

Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and if, after the accused has presented his defence to the indictment, summons or charge, the

prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.”

Äs was held by GILLESPIE J in S v Zaranyika 1997 (2) ZLR 359 (HC) at 559 a confession is-

“An unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a court of law."

As previously stated, there was no objection to the production of the confirmed statement. The accused gave her evidence coherently. What she failed to explain convincingly was why she initially gave a different explanation on what led to the deceased’s death when she woke up Bennedic Mapako. What she subsequently stated in the confirmed statement tallied with Bennedic Mapako’s observations. The deceased was semi-clad, with injuries to the head. The body was no longer bleeding, which suggests that the deceased had long died before the accused contrived to raise alarm. It is improbable that the deceased had threatened to kill the accused on that day and that the accused in turn managed to disarm him. The motive for the killing of the deceased is provided in the confirmed statement as well as in the accused’s testimony. She was a victim of abuse who decided to exact revenge which means she meant to kill the deceased.

In the result the accused is found guilty of contravening s 47 (1) (a) of the Code.

Attorney-General’s Office, legal practitioners for the state

Magwaliba And Kwirira, accused’s legal practitioners