Judgment record
THE State V Takawira Nyamukondiwa
HH 541-18HH 541-182018
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THE STATE
versus
TAKAWIRA NYAMUKONDIWA
HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 26, 27, 28 February, 13 March, 5 April & 25 & 27 July 2018
Assessors: Mr Chidyausiku
Mr Gonzo
Criminal Trial
SW Munyoro, for the State
R Mahuni, for the accused
TSANGA J: The accused is charged with the murder of his brother. The State’s case
is that on the 20th of October 2015, the deceased arrived home and pelted stones towards the
accused’s room alleging that the accused had stolen cash from him. The deceased demanded
that the accused should leave the residence. The accused is said to have emerged from his
room armed with a hoe and struck the deceased indiscriminately with it causing injuries on
the deceased’s back, arm and head from which he had died.
The accused had initially been brought to trial on 16 November 2016. At the time the
Judge before whom he appeared, at the behest of the defence counsel, had returned the
accused to prison to be examined by a psychiatrist in terms of the Mental Health Act and the
matter had accordingly been postponed sine die to permit for the examination by the
psychiatrist. The psychiatrist’s report had come back on 19 September 2017 from Dr Patrick
Mhaka. He reported as follows:
“Takawira does not suffer from mental illness. He has never been treated medically for a
mental illness before. He is exhibiting malingering (pretending to be mentally ill) He pretends
that he cannot remember what transpired yet in actual fact he does. From my assessment he
has no symptoms of mental illness currently and did not have symptoms of mental illness
before. He does not have auditory hallucinations (does not hear voices in his head). He has no
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paranoid delusions (has no abnormal suspiciousness). From my assessment today Takawira is
of sound mind.
In my opinion at the time of the alleged crime, the accused was not mentally disordered ”.
Prior to his referral to a psychiatrist his lawyer had taken instructions and the accused
had proffered a defence outline. In the accused’s defence outline, he denied the allegations
and stated that on the day in question, it was the deceased who had come to his house and
attacked him. He had never entered the deceased’s house. He further stated that even though
the deceased had attacked him, he never retaliated for fear of his life. Instead, he had run
away from the scene leaving the deceased in the company of his Wise, Solo and Tinashe who
the deceased was drinking beer with. He had returned to his house after a while where he had
left the deceased with his three friends. He had entered his room and retired to bed. He did
not see any eye witness or witness the incident. He denied striking the deceased with a hoe
thereby causing injuries from which the deceased died.
On the day of this trial the accused’s lawyer advised that the accused did not seem to
understand or agree with the defence outline he had proffered the last time. It was said that he
could not remember at all the persons he had mentioned in his defence outline. There were
also a lot of inconsistencies in his version. His lawyer wanted yet another postponement and
yet another examination. The relatives and neighbours who were present had advised the
State prosecutor that the accused fakes mental illness.
In view of the medical report which was barely four months old and the accused’s
own relatives confirming that the accused has never had a mental illness and that he was
given to pretending, I ordered that the trial proceed. It is not unusual for those accused of
serious crimes such as murder to lay claim to amnesia. The medical evidence before me was
that he was competent to stand trial. What an accused person is entitled to is a fair trial and
not necessarily a perfect trial. Given that he was said to be pretending, the fact that he was
giving inconsistent statements did not affect the accused’s competence to stand trial, or his
competence to consult his defence lawyer. The defence outline which he had provided earlier
clearly reflected that he understood fully well what the matter was about and that he was able
to fashion his defence.
THE STATE’S EVIDENCE
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Enigrace Mutato a neighbour of the accused and the now deceased, gave evidence. She
knew the deceased Rashid Nikisi as a brother to the accused. They stayed in separate houses
on the same premises. The deceased stayed in a two roomed cottage whilst the deceased had
his separate detached room. On the night in question, she had heard the deceased pelting the
room of the accused. They used to fight always. Her husband’s friend, Victor, who was
present at the time had gone out to ask why the deceased was throwing stones at his brother.
He had come back and said he was leaving and after about ten minutes the commotion had
started again. The accused had admonished the deceased to stop or else he would injure him.
After a short while she had heard something being hit like a drum. She had gone outside with
her friend and had heard the accused shouting at the deceased that he was going to kill him.
As he was assaulting the deceased he was speaking and she was therefore able to ascertain
that it was indeed the accused and the deceased who were having the fight. She and her friend
who had gone out to check, had seen the accused assaulting the deceased but had not seen
what he was using. They had both gone back to into her house.
She had tried to awaken her husband but he was too drunk. The point she emphasised
both in her examination in-chief and in cross examination was that as the accused was
assaulting the deceased he uttered the words “You thought you were going to kill me but I am
the one who is going to kill you.” In other words, she was clear about who was fighting who
and about what had been said. In cross examination, she said they were standing about 10
meters away and that there were no other persons besides the two brothers fighting when she
went to check. She also stated that Victor too who had tried to restrain them had found only
the two brothers fighting. The two brothers had also had a disagreement earlier in the evening
about cutting firewood. The following morning a tenant from the deceased’s premises had
come requesting her husband to come and check if Rashid was alive as she had noticed a trail
of blood.
Solomon Paul the husband to Enigrace also gave his evidence which was of
relevance from the morning thereafter when he went to check on the deceased. He had taken
drugs the previous night and therefore his evidence of the night’s events were hearsay to him.
In so far as the events of the following morning, he told the court that he had indeed gone to
check on the deceased and found him bent over the side of his bed. He was dead. He had
immediately gone to the nearest police station and upon return had found the accused
changing the clothes he had been wearing the night before. His trousers had bloodstains on
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the legs. (Exhibit 2). Whilst waiting for the police, the accused had indicated that he was
going there on his own stating that people were saying he had killed his brother when he had
not. The accused had left and people had followed behind him. However, he had walked past
the police post. The members of the public had been following him to ensure that he would
indeed go to the police station which he had not. A police officer had run after him and had
then brought him back to the house.
In cross examination he said his wife had not gone out to witness the fight but at the
same time he had told the court that he had taken drugs and had not been able to go out
himself. He admitted that she could have gone after he fell asleep.
Rebecca Nikisi the accused half-sister also gave evidence. She told the court that she
shared the same mother with the accused but that he had his own father. The deceased was a
younger brother to the accused. She shared the same parents with the deceased. As regards
the premises in question where the murder occurred she told the court that the stand belonged
to her maternal grandfather who had permitted her father to build on the stand. After her
mother‘s death, the deceased had been left staying there and he was the one who collected
rentals. Whilst the accused had been told to go to his own father’s relatives, it had been the
deceased who had said he should stay as no one would be able to take care for him. She
confirmed that he two brothers were always fighting especially when both drunk.
She had learnt of Rashid’s death on 20 October and had gotten there that night.
Family members had gone to see the accused at the police station the following morning.
Upon return, she had sought to clean the deceased’s room and had endeavoured to look for a
shovel to first remove blood stains that where in the yard. She told the court that there was a
lot of blood outside and the deceased appeared to have been dragged into the house. Upon
lifting some clothes that were on the floor in the accused’s room looking for a shovel, she had
stumbled upon a hoe which was blood stained at its edges. The hoe also appeared to have
been hidden. She had called the other relatives and had summoned the police who retrieved
the hoe. She had recognised the hoe as her mother’s which the accused kept and used for
cultivating. The hoe was admitted in evidence as exh 3.
She also told the court in cross examination that when they had gone to see the
accused at the police station, he had appeared to be traumatised by the incident but that when
he came with the police for indications, he started shouting at his mother’s sisters that they
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were involved and that they knew what had happened. He now started behaving as if he was
mentally challenged. She described him as a person who gets violent when he is upset.
Lovemore Mukaro who at the time was working as member of the special
constabulary gave evidence. He had been approached by members of the public that a person
who had murdered someone was running away. He had run after the accused who was about
to enter the gate to some shops .The accused had called him by name and told him he had
been coming to his office. The accused had said to him that there were people who had
assaulted his brother and that the latter was unable to wake up. The people who had come to
make the report to him had told him that they had suggested to the accused that they
accompany him to the police base but that he had insisted that he would go on his own. They
had followed behind, at a distance and when he had gone past the police to the shops where it
was possible to escape from behind, they had immediately reported. Thereafter this witness
had proceeded to the scene where he ascertained that indeed someone had been murdered. At
the scene he had observed that the deceased appeared to have been dragged to his room and
that the person had wanted to put him on the bed but had not managed. He had further
observed that the deceased’s left hand was broken and that he had deep cuts at the back of his
head. He also had a cut from the ear to the back of his head. The cuts showed that something
sharp had been used. He also had assault marks on his body. It also looked like water had
been poured on him. He further confirmed that a pair of trousers had been retrieved along the
tarmac on the way to the police station. People had confirmed that they had seen the accused
wearing the trousers in question that had been retrieved.
Isaac Hore the investigating officer also gave evidence. He confirmed the drag marks
at the scene. He too gave a vivid description of the injuries that had been inflicted on the
deceased. He spoke of broken pieces of bone on his left arm. He described holding his head
and that it was clear to him from so doing that the deceased’s head had multiple fractures
from the attack. His ear had been cut and he had three deep cuts at the back of his head. His
stomach had bruises and mud.
He further told the court that he had observed that the accused’s shirt had blood stains
and when he had asked the accused where the blood had come from he had simply said he
had been injured and bled. When asked where he had been injured he had simply said he had
been injured and had been unable to explain where or how he had been injured. The shirt the
accused had been wearing was produced as exh 4.
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He further confirmed the finding of the hoe in accused‘s room by Rebecca. He told
the court that they had tried to investigate what had caused the injuries when they searched
the accused and the deceased’s room but had not found the hoe as they had been looking for
something sharp. He further confirmed that the accused had been apprehended whilst trying
to escape. He also told the court that they had indeed requested in 2015 for DNA tests on the
hoe, the clothes and the blood of the accused but these results were not yet available.
However, he also emphasised that there was evidence from witness who could testify to the
clothes belonging to the deceased and that the bloodied hoe had been found in the deceased’s
room. He further told the court what the accused’s stated upon arrest was that the deceased
had attacked him. He had run away. He had also stated that the deceased was with his friends
and that it was those friends who could have inflicted the injuries.
THE ACCUSED’S EVIDENCE
The accused denied knowing the deceased Rashid Nikisi. He denied that he was his
brother. He denied knowing Rebecca Nikisi and that she was his half-sister. Whilst he
admitted staying at the premises in Epworth he said he had gone to work that night as he
carried goods for people. He denied knowing anything about the violence that had taken
place that night. He denied being engaged in a fight with Rashid or indeed fighting anyone
ever on the day in question or being attacked by anyone at all that day.
He was asked about the exhibits and said he knew the hoe that was produced because
it belonged to a certain old lady who lived next door. He denied that the hoe was found in his
room. He said when the police came, he was actually in the field using that hoe to weed. He
told the court that Enigrace who said she had seen him fighting with the deceased was lying.
What he could vouch to was that he was a tenant at the place and that the person who died
was also a tenant but that he did not even know his name. On the morning in question when
the deceased had been found, he said he had been at Solani shops and that whilst there a
friend had come to him to tell him that he was wanted at this residence because the tenant
there was not able to get up. He had gone back with his friend and had examined this person
whom he could not tell whether he was breathing or not. It was then that he had indicated that
he was going to the police and when he had gotten there had asked for a police officer called
Mukaro who was not there and was said to have gone to the bar. It was when he going to look
for him that he had heard his name being called out and he had responded. He had told the
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officer that someone had approached him about a friend who was failing to get up and he had
thereafter gone back to the house with the police officer. He said the police had wrongfully
arrested him. He further denied knowing Solo or Tinashe whom he had earlier mentioned in
his defence outline. He did not know how their names had appeared in the defence outline.
He told the court that he wanted to emphasise that he did not know the deceased as the latter
had his own ancestors and he had his own. The accused said his name is Nyamukondiwa and
the deceased was Nikisi.
In cross examination, he confirmed that he has never been mentally ill and that he
could not have objected to being mentally examined since he was now in the hands of police
officers. He told the court that the deceased had only been a tenant there for two weeks. He
denied that there had been wearing blood stained trousers which he removed. He denied ever
calling out that he was going to kill the deceased and said the witnesses were mistaken. He
equally disputed having had a quarrel about firewood with the deceased earlier that fateful
day. He refused that the clothes were his. He denied that Victor had come to restrain them
from fighting. He told the court that he had woken up at 7:30 am that morning had had used
the hoe up until 8: 30 before proceeding to the shops that morning.
Legal and factual analysis
We found the evidence of Enigrace very clear and straightforward on what had been
observed that night. We found the evidence of her husband relevant from the events of the
following morning. We accepted that having been drunk by his own admission the previous
night, he could not have witnessed the events of the previous night. It was his wife’s evidence
that we relied on for the events of that night. The evidence of the police officers was also
straight forward and credible on the accused’s arrest.
The facts in our view as outlined by the witnesses established the following;
- That it was only the accused who fought with the deceased that fateful night and that
there was no one present. Although the deceased had been the initial provoker by
throwing stones at the accused’s room, it was the accused who had come out of his
house and started assaulting the deceased whilst uttering the words that he was going
to kill him.
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- The accused had blood stained clothes the following morning and he had removed his
trousers which he had tried to dispose of. The trousers had been retrieved. His shirt
also had blood stains which he was unable to account to the police for.
- A blood stained hoe had been retrieved in the accused room and that it was the murder
weapon as it was consistent with the violent injuries the accused had received.
- The accused had also tried to run away instead of going to the police station.
- Right from the start the accused went to denial mode
On the other hand we found the accused’s denial that he even knew the deceased or
that Rebecca was his sister regrettable and pathetic. We do not believe that he ran away on
the night in question when stones were thrown at his room. We believe the evidence that that
he got out and attacked the deceased. We do not find that the accused’s friends were present
when the fight ensued as the evidence of the state witness who went out that night was clear
that only the two brothers were fighting that night. The accused later denied even knowing
these people which shows that he is the one who is lying. We do not find that the hoe was
planted into the accused’s room. The evidence of Rebecca Nikisi was clear that it appeared to
have been carefully hidden whilst the evidence from the police was that they probably missed
it because they had been looking for something sharp. To the extent that the accused feigned
ignorance of the events of that day, suffice it to note that amnesia is said to fall into three
categories, namely dissociative amnesia, organic amnesia and feigned amnesia.1
The first kind, dissociative amnesia is said to relate to:
“An inability to recall important personal information, usually of a traumatic or stressful
nature, that is too extensive to be explained by normal forgetfulness.’ This type of amnesia is
said to arise from an event that is so traumatic, or from a period of such high arousal, that the
defendant loses or fails to form any memory of the event in question. But because
"eyewitnesses of extreme violence seldom develop amnesia for the events they witnessed,"
the theory that strong emotions lead to amnesia "is very controversial, and, therefore, it is
wise to consider dissociative amnesia as a rare phenomenon ." 2
Organic amnesia on the other hand is to be characterised by:
"a disturbance in memory that is either due to the direct physiological effects of a general
medical condition or due to the persisting effects of a substance (i.e., a drug of abuse, a
medication, or toxin exposure)." This type of amnesia is said to arise from a physical defect
1
See James E. Tysse, Note: The Right to an Imperfect Trial -Amnesia, Malingering, and Competency to Stand
Trial, 32Wm. Mitchell L. Rev. 353 (2005) at p 356
2
Supra at p355
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that "may be structural (e.g., epilepsy, brain trauma), but it may also be momentary such as in
the case of alcohol or drug intoxication.3
The third type is feigned amnesia and is explained as follows:
“Finally, criminal defendants likely feign (or "malinger") amnesia for a number of
reasons, including as "an attempt to obstruct police investigation and/or to avoid
responsibility for their acts." Many offenders may also feign amnesia because of the
apparently strong perception among the public that complete amnesia is a common
and plausible reaction to a traumatic event, especially when alcohol or drugs are
involved.” 4
As stated, the psychiatrist’s report revealed that the accused was suffering from
feigned amnesia. Therefore the fact that he denied all events or even knowing the deceased or
his own relatives should not be surprising. He was simply continuing with his game playing.
The issue that falls for decision is what his state of mind was at the time. 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.”
So in other words what has to be decided is whether the accused possessed a state of
mind to kill at the relevant time and whether he intended to engage in the conduct or produce
the consequence he did. What was not in doubt from the evidence of Enigrace was that the
deceased was the one who initially provoked the deceased by throwing stones at his room. He
had also earlier on quarrelled with the accused about fire wood. Other than the pelting of his
room, there was no real threat to the accused and therefore self-defence is not the issue. A
reasonable person would simply have remained inside under lock and key. However, whilst
3
Supra at p356
4
Supra at p 356
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this court cannot discount that that the initial provocation came from the deceased, the issue
in this case is whether following the pelting of his roof with stones, a reasonable person
would have lost self-control to the extent that the accused in this case.
In terms of s 239 of the criminal code provocation is a partial defence to murder. It is
a partial defence where after being provoked the accused does not have the intention to
murder as envisaged in s 47 of the Criminal Code or if he has the intention he has lost self-
control in circumstances where a reasonable person would lose self-control under those
circumstances. See S v Hamunakwadi HH 323 -15
Granted he had reacted to the stone throwing at the time that it had occurred. His
reaction to the stone throwing does not appear to have been the kind of sudden and temporary
loss of self-control that renders him subject to passion such that he was not a master of his
mind at the time. It must be remembered that according to Enigrace’s evidence Victor had
gone put to try and stop the fight. There had been lull of 10 minutes before the vicious attack
escalated. It was more of a calculated reaction to attack the deceased fully. The accused’s
response to the provocation seemed to have been influenced by the existing acrimonious
relations between the two and the past events between them. The provocation and the death
were not necessarily linked to events of that day but to cumulative anger.
Therefore whilst the accused was provoked his reaction was way out of proportion
and exhibited an intention to murder. When the accused decided to retaliate, there is no doubt
that at the time he decided to do so out of proportion to the provocation. The accused did
intend to engage in the conduct and to produce the consequences he did. This is evident from
the repeated utterances he was going to kill Rashid. That he intended his consequences is
evident from the extent of brutality of the assault. The deceased’s hand was described as
having been broken in several places as was his skull. The thunderous blows he had
administered had been heard by the neighbours and had alerted them to the fact that
something dangerous was going on out there.
There was no evidence of an outsider having been part of the fight. The accused was
placed at the scene of the crime with certainty and yet his was a bare denial. Not only was he
seen by Enigrace and her friend but he was also heard clearly telling the deceased that he was
going to kill him. The viciousness of the attack also showed that he intended to kill or to give
real meaning to his words that he was going to kill the deceased. He was also heard
delivering the fatal blows which sounded like a drum was being hit yet it was a human body.
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He had also tried to dispose of his bloodied trousers when he was seen that morning by
Enigrace’s husband. The bloodied hoe had been found in his room. If the crowd had not been
vigilant he would have used the opportunity to escape. We find that he was pretending not to
know his family members.
A reasonable person is expected to react proportionately to the provocation. It cannot
be said that hacking someone to death for throwing stones on your roof is a reasonably
proportionate response. The accused himself appears to appreciate that his reaction was well
out of proportion and this may be an explanation for his malingering and denial.
Verdict:
We find that the evidence led was sufficient beyond reasonable doubt that when the
accused attacked the deceased on the night in question, his intention was to kill. We therefore
find the accused guilty of murder in terms of s 47 (1) (a) of the Criminal Code.
27 July
Mitigation, aggravation and sentence
In mitigation, the accused was said to be a first offender with two children aged 6 and 3 years
who are currently staying with their mother. The court was also asked to put weight on the
fact that the accused had reacted in response to provocation even though it was acknowledged
that the reaction had not been proportionate to the act of aggression. It was also highlighted
that the accused will now have to live with the consequences and reality that he killed his
own brother. The court was therefore urged to consider a sentence that gives him a chance at
rehabilitation.
Whilst the State acknowledged the circumstances under which the fight between the
two brothers had started, it emphasised that when the accused attacked the deceased he had
formulated an intention to kill him as exemplified by his repeated utterances of his intention
as well the depth of brutality of his attack. His behaviour after the attack was also said to be a
factor to be considered. There was no remorse.
In arriving at an appropriate sentence this court takes cognisance of the fact that he is
a first offender but that the weight of this in the face of a serious offence is inevitably not
great. The court does however bear in mind that he was not the initial offender but then his
response was brutal and callous. He indeed tried to conceal the evidence in throwing away his
trousers. He tried to evade arrest afterwards. He has not shown any remorse whatsoever
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thereafter and in fact went to great lengths to prevent a trial by feigning mental illness. The
State’s view that the appropriate sentence cannot be anything less than 20 years is shared by
this court under the full circumstances of this case.
The accused is sentenced to 25 years imprisonment.
National Prosecuting Authority, State’s legal practitioners
Mahuni Gidiri Law Chambers, legal practitioners for the accused (Pro deo)