The State v Jealous Nemaringa and Patrick Marufu

### Preamble
1
HMA 52-17
Case No. HC 7 – 8/16
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THE STATE

versus

JEALOUS NEMARINGA

and

PATRICK MARUFU

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO, 3, 4, 12 & 17 October 2016; 10 July 2017 & 20 September 2017

Criminal trial

Assessors: Messrs Dhauramanzi & Mushuku

Mr E. Chavarika, for the State

Mr J.G. Mpoperi, for the first accused

Mr M. Mureri, for the second accused

MAFUSIRE J:

[a]	The charge

[1]	The two accused persons, Jealous Nemaringa and Patrick Marufu, were jointly charged with murder. The allegations against them were that on 28 September 2015, in rural Bikita, Masvingo, one or other or both of them unlawfully caused the death of the deceased, one Farai Manyanga. They allegedly hit him with logs on the head multiple times.

[2]	Medical evidence showed that the deceased had suffered facial swelling; a depressed skull fracture on the forehead [sagittal mane in the frontal area]; bleeding from the mouth and nostrils, and a loose and hypermobile neck. The cause of death was head injury and cervical spine subluxation.

[3]	The State’s case was that on the day in question, the deceased had been drinking a traditional brew at some homestead in the company of several other villagers. The accused persons had not been part of that gathering. But from time to time accused 1 would come with a five-litre container to buy beer. He and accused 2 were drinking in the comfort of accused 1’s homestead, some distance away.

[4]	Later on at night, deceased had left the beer place for his homestead. He passed through accused 1’s homestead. The two accused were there. The State alleged that acting in concert with each other, the two attacked the deceased with logs several times on the head, causing him severe injuries.

[5]	Deceased bled from the attack. He lost consciousness. The State alleged the two accused carried him from the scene and dumped him in his kitchen hut at his homestead. Deceased had been bleeding all the way. He left a trail of blood.

[6]	Deceased was discovered the following morning. He was lying unconscious and half naked in his kitchen hut. Neighbours and relatives were alerted. He was ferried to clinic and later on to hospital. He died in hospital on the same day.

[7]	Both accused persons pleaded not guilty. Accused 1 admitted striking the deceased with a log. However, he denied killing him. He said, among other things, the deceased had managed to run away.

[8]	Accused 2 completely dissociated himself from deceased’s death. He denied having fought with him or having assisted accused 1 in any way.

[b]	The State case

[9]	The State intended to call seven witnesses. The defence accepted the outlines of four of them. Therefore, their viva voce evidence was dispensed with.

[10]	The State witnesses whose synopses were admitted into evidence without objection were Makepeace Biton [“Makepeace”], Dudzirai Chereni [“Dudzirai”] and Inspector Muoni [“Inspector Muoni”].

[11]	Makepeace was the one who discovered the deceased lying unconscious and half naked in his hut. He and others had raised an alarm leading to a number of villagers congregating.

[12]	Dudzirai was the deceased’s mother. She did not live with him. He had his own separate homestead. Upon receiving news of her son’s situation she, as with the other villagers, had gone to investigate.

[13]	Makepeace and Dudzirai were together with the other villagers as the events unfolded.

[14]	Inspector Muoni was a police officer stationed at Bikita. He witnessed the recording of the accused’s warned and cautioned statements by the investigating officer, Sergeant Amos Matiyenga [“Sergeant Matiyenga”].

[15]	First to give viva voce evidence for the State was Simbisai Nemaringa [“Simbisai”]. He was one of the villagers that had been at the beer drink the previous day. He said he had passed through accused 1’s homestead the following morning. He was going back to the beer place for the dregs. At accused 1’s homestead he noticed that the sand was sodden with blood and water. The trail started in some shed at accused 1’s compound and led away from the homestead.

[16]	Simbisai said he had enquired of the blood from accused 2. He had found him at the scene at the time. Accused 1 had been inside the kitchen. Accused 2 had professed ignorance. Accused 1 had then come out. He started covering the spoor of blood with soil using his booted feet. Accused 2 had advised him to use a tree branch instead. During the process, several other villagers had converged on the scene.

[17]	First to arrive had been two men, Thulani Bvekwa [“Thulani”] and Lawrence Masuka [“Lawrence”]. These had been trailing the spoor of blood from the deceased’s homestead, right up to where everybody else was now gathered at accused 1’s homestead. Accused 1 had subsequently been arrested by the villagers as he had tried to commit suicide in a nearby bush.

[18]	Next to give evidence was Sergeant Matiyenga. He was the investigating officer. His evidence was largely uncontentious, except for two points. The first was when he claimed that when he had gone to the scene of the crime for investigations, some two days later, the spoor of blood and water from accused 1’s homestead to the deceased’s had still been visible. This was challenged by the defence. They said the spoor could not possibly be still visible, or evident, after two days, especially as accused 1 was said to have obliterated it. The second was that despite accused 1, and one or other of the witnesses, pointing out two logs as the only weapons accused 1 had used in attacking the deceased, Sergeant Matiyenga said he had collected three. Asked why he had collected three logs, instead of two, Sergeant Matiyenga said he had found the third one also lying there at the scene.

[19]	The third State witness was Dr Godfrey Zimbwa [“Dr Zimbwa”]. He was the medical practitioner who performed the post mortem examination of the deceased’s remains and compiled a post mortem report. His evidence was largely to unpack some medical jargon on that report, such as:

bilateral facial swelling – swelling of both sides of the face;

depressed skull fracture sagittal mane in the frontal area – fracture of skull bones in the forehead;

cervical spine subluxation – partial dislocation of the bones of the neck leading to depressed breathing

[20]	One other significant feature of Dr Zimbwa’s evidence was that, with the kind of injuries that he observed, and contrary to accused 1’s assertion or insinuation that the deceased could have run away to his homestead after the attack, it was improbable that the deceased could have staggered away for any longer than fifty metres without collapsing.

[21]	Initially Thulani had been lined up as one of the State witnesses. But at the time of the trial he had since relocated to South Africa. By agreement with the defence, and after some glitches, the State switched over to, and roped in Lawrence as the last State witnesses.

[22]	Important aspects of Lawrence’s evidence were that after he had received news of deceased’s situation lying half naked and unconscious in his hut, he as with the others, had also gone there to check. Deceased had been his relative. But so were the accused persons.

[23]	Lawrence testified to initially having seen the spoor of blood and water from accused 1’s residence to deceased’s, and later on finding it having been obliterated. He had enquired of accused 1 as to what had happened. Accused 1 had admitted striking the deceased with a log three times on the head. His reason for doing so had been that the deceased had insisted on trespassing through his residence despite having warned him not to.

[24]	A crucial aspect of Lawrence’s evidence was that he had also enquired of accused 2 as to what had transpired. Accused 2 had replied that he had seen nothing as he had been too drunk on the night in question and had been asleep as the deceased had altercated with accused 1.

[25]	Yet another important aspect of Lawrence’s evidence was that accused 1 had admitted that he alone had struck the deceased with a log and that it was him, not both he and accused 2, who had obliterated the spoor of blood and water.

[c]	Discharge of accused 2

[26]	After Lawrence, the State closed its case. Counsel for accused 2 immediately applied for a discharge. His argument was that the State had adduced no such cogent evidence against accused 2 as would lead a reasonable court, acting carefully, to convict.

[27]	The State readily conceded. In our view, the concession was well made. Among other things, the only piece of evidence that could be said to have been incriminatory of accused 2 was the bit by Simbisai that on the day after the assault, when he had passed through accused 1’s residence and had observed the spoor of blood and the water-sodden soil, he had heard accused 2 advising accused 1 to obliterate them with a tree branch instead of his feet.

[28]	Initially, the State had wanted to leverage on that evidence to mount the argument that accused 2 should be treated as an accessory after the fact in that, not only had he been at the scene of the crime at the relevant time, but also that he had made common purpose with accused 1 to obliterate the evidence of the commission of the crime.

[29]	Indeed the State had given notice of such an argument when accused 2 had applied for bail pending the resumption of the trial. That was after the State had failed to locate Thulani. As a result, it had applied for a postponement of the trial sine die in order for the police to trace Lawrence. The State had opposed the application for bail. However, I had proceeded to grant it.

[30]	The accessory after the fact and common purpose arguments would have been tenuous. After Lawrence had testified [he had not yet done so when the State had opposed accused 2’s bail application as he had not yet been located], there was no way that such arguments could reasonably be mounted.

[31]	Both accused persons had been consistent in their warned and cautioned statements. These had been admitted into evidence. They had also been consistent in their defence outlines. In them they stated that it was accused 1, not one or other or both of them, that had struck the deceased. Lawrence’s evidence was essentially corroborative and exculpatory of accused 2.

[32]	The State conceded that there was no evidence to link accused 2 to the commission of the crime. The concession was well made. Accordingly, at the close of the State case we found accused 2 not guilty of the murder of the deceased, or of any other crime. We duly discharged him. His counsel was excused from any further participation in the trial.

[d]	The defence case

[33]	Henceforth any reference to “the accused” is a reference to accused 1. He gave evidence. The essential aspects of his evidence were that on the day in question he had consumed a large quantity of alcohol together with accused 2; that some time during the day, as he from time to time went to procure more beer from the beer place, the deceased, who had been imbibing with other villagers there, had demanded payment of his $3 debt but that he had struck a deal with him to be patient until the month-end. It would only be at the month-end, when he had received his own debts from those that owed him money, that he would be able to pay back the deceased.

[34]	The accused said at around 21:00 hours, as he was still with accused 2, who however, had dozed off, deceased arrived at his homestead demanding payment of the debt there and then, contrary to their agreement.

[35]	The deceased had been aggressive. He was saying he could no longer wait for the month-end, seeing that the accused was splashing money on beer instead of paying him back his money. In court, the accused said he was not using cash to buy the beer but that he was bartering rapoko or sorghum.

[36]	The deceased would have none of that. He started assaulting the accused with fists. The accused had been seated. Reacting to the attack, he stood up to ward of the blows. However, the deceased overpowered him. The accused randomly picked a log from a stack piled by the fire place. He swung it and struck the deceased. He could not remember where exactly he struck the deceased. He could not remember how many blows he delivered. He admitted the blows would have been more than one. He could also not remember whether he used one log or more than one.

[37]	The accused said the deceased had run away. He heard nothing further from him that night. The following morning he learnt of the deceased’s situation. People confronted him. He decided to go to deceased’s homestead to see for himself. However, he had wanted to pass through a nearby bush to answer the call of nature first before proceeding to deceased’s homestead. But people mistakenly thought he was planning to commit suicide or to run away. They apprehended him.

[38]	The accused denied that he obliterated the trail of blood and water from his homestead to deceased’s place. He denied he used excessive force to ward off the deceased’s alleged attacks.

[39]	Although not argued crisply, it seems accused’s defence or explanation for his conduct on the fateful night was a combination of intoxication, provocation and self-defence. In the closing submission by his counsel the accused tendered a plea of guilty to culpable homicide, largely for the reason that he had been provoked by the deceased who had fought him over money. It was also argued that the accused’s sense of judgment had been impaired by the large amount of alcohol that he had consumed on the day in question.

[40]	The State did not accept the accused limited plea of culpable homicide. It argued that none of the so-called defences was available to him. State counsel pointed out that according to the Criminal Law [Codification and Reform] Act, Cap 9:23 [“the Code”] voluntary intoxication is not a defence to a criminal charge requiring proof of intention.

[41]	The State also argued that the defence of self was also not available to the accused. It said he had failed to satisfy the requirements set out in the Code for it to be a complete defence. Among other things, the accused had used disproportionate or excessive force against an unarmed and defenceless person. Furthermore, he had had ample opportunity to escape.

[42]	The State did not deal with the issue of provocation.

[e]	The verdict

[43]	We are satisfied that in the circumstances of this case, none of the accused’s defences is available to him. Below are our reasons.

[44]	As the State pointed out, voluntary intoxication is not a defence to a criminal charge requiring proof of intention. In terms of s 222 of the Code, if a person commits a crime while he is voluntarily intoxicated to the extent that he lacks the requisite intention, or the knowledge or the realisation to commit the crime, he shall be guilty of voluntary intoxication leading to the unlawful conduct, and liable to the same punishment as if he had been found guilty of the crime originally charged. In that event intoxication only becomes relevant in mitigation.

[45]	In casu, it was not the accused’s case that on the fateful night, he was so drunk as to lack the intention, the knowledge or the realisation that by smashing the deceased with several logs on the head, using that much force, the deceased could succumb and die. Nor could such a conclusion be inferred from the facts. His recollection, narration and description of the facts and the events was crisp and laudable. Among other things;

he could estimate the quantity of the beer that he had bought and consumed together with accused 2;

he was not mistaken about who he believed was trespassing on his homestead;

he was clear on the cause of his altercation with the deceased;

despite the limited lighting, he was clear accused 2 had dozed off and had not joined his fight with the deceased;

he remembered the deal that he had struck earlier on with the deceased to pay back the outstanding debt at the month-end;

he remembered the deceased attacking him first, then him rising and pulling out a log from a stack to strike the deceased;

he remembered the deceased running away.

[46]	In S v Dzaro the accused plunged a kitchen knife twenty-six times into the upper part of the body of the deceased, her boyfriend, after a night’s binge of alcohol and sex. The court held that although she had consumed a large quantity of alcohol, she had been able to recall and recount with sufficient clarity and coherence details of how the incident had taken place. It said that the alcohol might have made the accused more irascible, more violent, and given her more “Dutch” courage than she would otherwise have been in her sober senses. The accused’s twin defence of intoxication and provocation was rejected.

[47]	Unquestionably, intoxication is a question of degree. Where a crime has been committed, it cannot be every intake of alcohol that results in someone getting so drunk as to negative mens rea, i.e. intention.

[48]	Self-defence is governed by s 253[1] of the Code. There are four cumulative or conjunctive requirements. These may be paraphrased as follows:

the unlawful attack must have commenced or become imminent;

the accused’s conduct was necessary to avert the unlawful attack and he could not otherwise escape;

the means the accused used to avert the unlawful attack were reasonable in all the circumstances;

the harm or injury caused by the accused’s conduct was to the attacker, and not to an innocent third party, and such conduct was not grossly disproportionate to that liable to be caused by the unlawful attack.

[49]	A person pleading self-defence must meet all the above requirements in order for that defence to be available to him as a complete defence.

[50]	In the present case, we were not satisfied that the accused’s conduct was necessary to avert the unlawful attack. The altercation happened outside the huts. It was in the open. When asked why he had not escaped the deceased’s alleged attack, the accused said he had thought about it but had got no chance because he was drunk.  We did not accept that. While, according to him, he was so drunk as to be unable to escape, he was not so drunk as to use, not one, but several logs to smash the deceased’s head with that much lethal force. Against someone who was unarmed, the accused used disproportionate or excessive force.

[51]	Provocation, in relation to the crime of murder, is dealt with in s 239 of the Code. It provides a partial defence. Instead of murder, the accused can be convicted of culpable homicide if the essential elements of murder are proved but for the provocation.

[52]	However, for provocation to succeed as a partial defence, the accused, as a result of the provocation, must have lacked the requisite intention to commit the murder [i.e. actual intention], or lacked the requisite realisation that his conduct, with which he persisted, carried the real possibility that death might occur [i.e. constructive intent].

[53]	Provocation may also succeed as a partial defence to murder if, as a result of it, the accused did have the intention to commit the murder, or did realise that his conduct may result in death, but had completely lost self-control, the provocation being sufficient to make a reasonable person in his position and circumstances lose self-control.

[54]	The actual wording of s 239 is:

“239 When provocation a partial defence to murder

[1]	If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation –

[a]	he or she does not have the intention or realisation referred to in section forty-seven; or

[b]	he or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

[2]	For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that –

[a]	he or she did have the intention or realisation referred to in section forty-seven; or

[b]	the provocation was not sufficient to make a reasonable person in the accused’s position and circumstances lose his or her self-control;

the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

[55]	So provocation, as a defence, is a two-stage enquiry: firstly, the subjective enquiry, i.e. para [a] of s 239[1], and secondly, the objective enquiry, i.e. para [b] of s 239[1].

[56]	Where provocation has been raised as a defence to a charge of murder, the court first enquires into the subjective state of mind of the accused at the time of committing the offence to establish whether, given all the surrounding circumstances, he had the intention to kill, or not. If, by reason of provocation, he did not have the intention to kill, despite he having killed, then he may be acquitted of murder, but may be found guilty of culpable homicide. If, following the provocation, the accused formulated an intention to kill, the court will go to the second rung of the enquiry and apply the objective test, namely, would a reasonable man in accused’s place have lost his self-control by reason of the provocation and killed? If, yes the accused should be acquitted of murder but found guilty of culpable homicide.

[57]	In casu, defence counsel argued that the accused was provoked in that the deceased continued to pester him for payment yet the two had earlier on agreed on payment terms.

[58]	Defence counsel also argued that the deceased had been the aggressor. He said, given the geographical layout of their respective homesteads, the deceased, from the beer drink, could have easily gone straight to his homestead without passing through the accused homestead. Instead, he had deliberately taken the longer route that went via the accused’s homestead because his intention had been to harass him.

[59]	But judging the facts objectively, there was no such provocation as would have made a reasonable person lose self-control to the extent of assaulting the deceased to death.

[60]	Accepting for a moment the accused’s own version on the issue of the repayment of the debt, the deceased might well have been unreasonable to continue insisting on instant payment when he had earlier on agreed to wait for the month-end. But the fact remained that the accused owed him money. Yet he was buying beer for himself and his friend without honouring his debt. We do not accept the claim by the accused that he was not using cash to buy beer but that he was bartering sorghum. That was manifestly an afterthought. It only came out during questioning by the court, after the evidence-in-chief and the cross-examination and the re-examination had all been done. He had said nothing of the sort.

[61]	Objectively, the deceased’s conduct in demanding his money back was not unreasonable. Reasonably he would have been irritated by the accused’s conduct which he must have taken as stubbornness and even insulting, especially given that the date of the incident, 28 September, could reasonably be construed to be a month-end, or the start of the month-end. Being indebted as he was, the accused could only have continued to plead for more time to pay, if indeed the deceased had been persistent on wanting payment there and then.

[62]	We acknowledge that what the accused might actually have been saying is that the provocation was in relation to the deceased attacking him first, and not in unreasonably demanding his money back. But even on this, the defence of provocation still falls short, given the somewhat stringent requirements of s 239 of the Code.

[63]	In line with our findings on self-defence, the accused did have constructive intent to cause the death of the deceased. He foresaw, or must have foreseen the risk of death resulting from his pummelling the deceased several times on the head with more than one log.

[64]	The logs were produced in court. The first was 1.5 metres long and it weighed half a kilogramme. The second was 1.3 metres long and it weighed 1.25 kilogrammes. The third was 0.75 metres long and weighed 0.70 kilogrammes. The accused was of medium built. His use of severe force with such weaponry, the blows being directed at a delicate part of the body, the skull, could only spell disaster.

[65]	We believe whatever provocation might have been there, did not negative intention to commit murder. It was upon such findings that we found the accused guilty of murder with constructive or legal intent.

[f]	The sentence

[66]	Remarkably, both counsel were almost ad idem on the appropriate sentence. They were generally agreed that the sentence should be in the region of ten to fifteen years imprisonment.

[67]	The accused had a previous conviction. In 2010 he was convicted of common assault and sentenced to two months imprisonment. However, defence counsel urged us to disregard the previous conviction as being too old and therefore irrelevant.

[68]	At the time of the trial the accused was thirty-three years old. He was thirty one years old at the time of the commission of the offence. He was married with two minor children. He was the sole breadwinner. He relied on random odd jobs to feed his family.

[69]	We have taken the accused’s personal circumstances into account. We have also considered that the accused had been drinking all day and that his sense of judgment might probably have become impaired to a degree. However, even without the statistics to back up our observation, alcohol-induced murders are prevalent in the Province of Masvingo. Quite conservatively, I estimate that more than ninety-five percent [95%] of the murder cases that this court has dealt with since the opening of a permanent station in this province have been to do with alcohol consumption. Alcohol-induced murders are far too prevalent. It is a serious cause for concern. It might require some extra-judicial interventions.

[70]	Whilst we have not accepted the element of provocation, even for mitigating purposes – because the facts do not support that – nonetheless we have taken into account that it was the deceased that came to the accused homestead where the fatal altercation eventually occurred, and not the other way round.

[71]	Contrary to defence counsel’s exhortation, we have taken the previous conviction into account. It was too relevant to ignore. Assault is an act of violence. Murder is an extreme form of assault. It is the ultimate violence. The accused’s two months in jail in 2010 should have taught him at least one life lesson: violence does not pay.

[72]	Finally, we have taken into account that our verdict is premised on constructive or legal intent, not actual intent. In murder with actual intent the offender desires the result. He wills it. He wants it. He intends it. The level of moral guilt is high. But for murder with legal or constructive intent, the offender may not desire or will the death. However, he still realises that it is a possibility that death may ensue from his conduct. But he does not care, or he is reckless about it. The degree of moral blameworthiness is lower. Thus, constructive intent on its own, or together with other factors is mitigatory: see S v Siluli SC 146/04.

[73]	In Dzaro above, the accused was sentenced to twelve years imprisonment. In S v Malundu HH 68-15 a farm security guard assaulted to death a fellow farm employee whom he suspected to have stolen some irrigation pipes from the farm. He was convicted of murder with constructive intent and sentenced to ten years imprisonment.

[74]	In the present case, we believe ten years imprisonment meets the justice of the case.

20 September 2017

National Prosecuting Authority, legal practitioners for the State;

Saratoga Makausi Law Chambers, legal practitioners for the first accused

Matutu & Mureri, legal practitioners for the second accused