THE State V Petros Nhidza

### Preamble
1
HMA 49-18
CRB 48/18
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THE STATE

VS

PETROS NHIDZA

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 27 SEPTEMBER AND 19 OCTOBER 2018

Assessors:

1.	Mrs Chademana

2.	Mr. Dauramanzi

Criminal Trial

T. Chikwati for the State

M. Mureri for the Accused

MAWADZE J:	The facts in this case are largely common cause.

The accused is facing a charge of murder as defined in S 47 (1) of the Criminal Law Codification and Reform Act [Cap 9:23]

The charge is that on 21 March 2018 at Nemauku village, Chief Ndanga, Zaka, Masvingo the accused caused the death of Mhika Marufu by striking him with an axe several times on the head.

The 58 year accused resides in Muparuri village Chief Ndanga, Zaka.  At the material time he was a divorcee staying alone at his homestead.  The accused had separated from his wife Anna Maria on 30 November 2016.  The accused is said to be self employed as a mechanic.

The now deceased was 60 years old.  He was from Mapako village, chief Makore, in Gutu, Masvingo.  At the maternal time, he was employed in Nemauku village, chief Ndanga, Zaka, Masvingo where he looked after a homestead of a family which was based in South Africa.  He stayed with his 6-year-old boy.  Occasionally his wife Beatrice Hadzidzi would visit him at his workplace like at the maternal time from their matrimonial home in Mapako village, chief Makore, Gutu.

The allegations against the accused are that in 2016 the accused suspected that the now deceased was having an extra marital affair with his wife Anna Maria and that they had sired a baby girl.

On 21 March 2018, the accused went to Nemauku business centre where he drank beer until late in the night.  He then left for home.  The accused then armed himself with an axe and proceeded to the now deceased’s residence some 3km away in Nemauku village, Chief Ndanga, Zaka.  The now deceased had retired to bed with his wife and their 6-year-old son.  Their bedroom door was unlocked.  The accused effected entry into the house.  The now deceased’s wife realized there was an intruder in the house and woke up the now deceased.  The accused took a torch inside the bedroom and flashed it on to the now deceased’s face.  The accused and the now deceased held each other and struggled.  They both fell down.  The accused then struck the now deceased with an axe several times on the head, rib cage and the right arm. Both the now deceased’s wife and son fled from the bedroom.   The now deceased died from injuries inflicted moments after the accused left for his home where he washed the blood stained axe and hid the axe head in his fields and the axe handle in a shrub behind his house.    Police investigated the matter and accused was arrested the same day leading to the recovery of the axe.

The accused raises defences of provocation and voluntary intoxication.  He does not dispute the facts on how he axed the now deceased to death on the day in question.  The accused however submits that he should be convicted of culpable homicide rather than murder on the basis of his defence of provocation.

In a nutshell the accused explains his conduct as follows:

The accused alleges that the now deceased had an extra marital affair with his wife resulting in the birth of a child during the subsistence of his marriage to his wife.

The accused said he discovered this when on two separate occasions he found the now deceased in a compromising position with his erstwhile wife in accused’s bedroom.  He said this led him to divorce his wife.

The accused said on the fateful day he met the now deceased who provoked him by bragging about his extra marital affair with his wife.  The accused said the now deceased mocked him by telling accused to change the surname of the child born out of this alleged illicit affair from accused’s name to now deceased’s name by cancelling the birth certificate the accused had grudgingly obtained for his child.  The accused said he was taunted for an hour by the now deceased.

After the provocation the accused said he left for Nemauku business centre where he drowned his sorrows by drinking beer until about 2300 hours.  Thereafter he said he proceeded to the now deceased’s residence armed with axe and confronted the now deceased.  The accused said a fight ensued and that he over powered the now deceased whom he proceeded to kill with the axe.  The accused said his conduct was motivated by the provocation he suffered earlier on at the hands of the now deceased hence he should be convicted of the lesser charge of culpable homicide.  He said the situation was worsened by the beer he had consumed.

This is the story or explanation the accused maintained on his evidence.  In further elaborating on his defence the accused said the following;

The accused said he first became aware of the extra marital affair between the now deceased and his wife in December 2015 when he arrived at his residence only to find the now deceased in the accused’s bed room having sexual intercourse with his wife.  The accused said he peeped through a small window and saw the two inflagranto delicto.  He said the now deceased confessed being in love with accused’s wife.  The accused said he was willing to give another cheek and condoned this adulterous act by allowing the now deceased to go and remained with his wife.

The accused said to his surprise some few days later on 5 January 2016 he unexpectedly returned from a relative’s funeral and found the now deceased again inside the accused’s bedroom.  The accused said the now deceased was caressing the buttocks of the accused’s wife and upon realizing the presence of the accused the now deceased fled.  The accused said he was unwell as he had been injured hence could not chase after the now deceased.  He further said he could not be intimate with his wife for some time because of the injuries.  Again the accused apparently condoned this infidelity and remained with his wife Anna Maria.

The accused said what broke the camel’s back was that his wife gave birth within 8 months to a mature baby from the time the accused had last been intimate with her.  As a result, they quarrelled but his wife insisted he should get a birth certificate for this child.  The accused said he capitulated but they continued to quarrel until 30 November 2016 when they separated or divorced with his wife of 3 years and 7 months.

The accused said he remained staying alone for about one year and four months when he then met the now deceased on the fateful day on 21 March 2018.  He said the now deceased took him to task as to why accused had obtained a birth certificate for a child accused was fully aware was sired by the now deceased and foistered accused’s surname on that child.  He said the now deceased alleged accused wanted to reap where he did not sow by later claiming lobola for the said girl child.

The accused said he was further insulted by the now deceased who told him he was infertile and should simply cancel the fraudulently obtained birth certificate for the said child.  In the process harsh words were exchanged until the two separated.

The accused said he thereafter proceeded to the business centres where he bought 6 containers of opaque beer known as “scuds” and 5 bottles of some lethal brew called “soldier” with 47% alcohol content which he consumed.  The accused said he started to think why his ex-wife had pressurised him to get a birth certificate of a child sired by the now deceased.  Further he felt the pain of being a divorcee as a result of the now deceased’s amorous conduct.  During this thought process he partook the copious quantities of the said alcohol from 1600 hours until 1930 hours after which he could not recall what happened until he found himself at the now deceased’s residence.

The accused said, at the now deceased’s residence he found the bedroom door partially open and entered.  He said he flashed the now deceased in the face with a torch and deceased held him forcing the two to fall down.  The accused said he got up first and fearing the now deceased would attack him he took preemptive action by striking the now deceased first with an axe.

The accused said he could not recall how he actually attacked the now deceased but recalls that after the attack he proceeded to his residence where he hid the axe.

The accused said while he condoned the first act of adultery he decided to divorce his wife on the second occasion for being unrepetant.  The accused said he could not bring himself to the embarrassment of suing for adultery damages hence opted for divorce.

Under cross examination the accused was taken to task as to why he remained with his wife for almost a year after she committed the second act of adultery before divorcing her.  In response the accused said he tolerated his wife who had threatened to commit suicide if he divorced her.  The accused was asked why he did not seek redress from the now deceased.  In response he said the now deceased was of no means hence could not pay adultery damages.

The accused was taken to task on the quantity of beer he said he consumed within 3 hours as it was deemed to be exaggerated.

It became difficult for accused to explain why he had a vivid recollection of events especially on the aspect of time but then allege amnesia on maternal issues.  Accused agreed he could recall the time he left the business centre being 1930 hours, the time he said he arrived at his residence and the time he arrived at the now deceased’s residence.  Further accused recalled that after the attack of the now deceased he washed his clothes and the blood stained axe which he thereafter hid.  He did recall the exact places he had hid both the axe head and the hoe handle which were separate places.

As the cross examination progressed, the accused could not explain his conduct.  He was asked why he decided to go to the now deceased’s residence and in response he unconvincingly said he wanted the now deceased to take the said child and give the child the now deceased’s surname.  The accused could however not say why he had to do that at night and most importantly armed with an axe.  The accused conceded that despite his alleged intoxication he had a clear recollection of events of the day in question.  He admitted that if he is to be believed he could control himself even after finding his wife being intimate with the now deceased twice but would fail to control himself after mere verbal insults.

The accused could not explain as to why he failed to cool off after walking 7 kilometres from the business centre to his residence and then to the deceased’s residence.

It is in the context of this evidence that the accused’s defences of provocation and or intoxication should be assessed.

The cause of the now deceased’s death is not an issue.  As per the post mortem report Exhibit 1 the now deceased died from severe head injury.  Doctor Zimbwa whose evidence was admitted in terms of S 314 of the Criminal Procedure and Evidence Act Chapter 9:07, observed the following injuries;

“-     4cm laceration on left temporal area.

-     3cm laceration on infra orbital left area.

-     1cm laceration supra orbital margin.

-     2cm laceration on chin.

-     2cm laceration right occipital area.

(all above lacerations skull deep – smooth edge)

fracture of right radius/ulnar – blunt trauma”

The accused admitted that he is the one who inflicted these multiple injuries on the now deceased with an axe Exhibit 2.  This axe is 80cm long and its head is 23cm, the cutting edge being 11cm.  It is a fairly heavy axe weighing 4,12 kg and known as “bheura” in shona.  Indeed it is a lethal weapon.

The intention of the now deceased in using this axe Exhibit 2, and inflicting the injuries reflected in the post mortem Exhibit 1 was to cause death.  This can be discerned even from the accused’s confirmed warned and cautioned statement Exhibit 3 in which the accused said;

“I have understood caution of the charge.  I admit to the charge of murdering the deceased because he had an affair with my wife and they had a child”.

It is important to note that in that confirmed warned and cautioned statement the accused does not mention that he was intoxicated or that the alcohol he had consumed played any role.  Cuthbert Hofisi witnessed the recording of this statement and his evidence was admitted also in terms of S 314 of the Criminal Procedure and Evidence Act Chapter 9:07.

The evidence of the now deceased’s wife BEATRICE HADZIZI, the arresting police detail special constabulary SAMSON MANYATHI and the Investigating Officer Sergeant RAYMOND NYAMVURA was not meaningfully challenged by the accused.  We therefore simply outline it for purposes of completeness of the record.

The now deceased’s wife Beatrice Hadzizi (Beatrice) testified that she did not know the accused at all.  She had visited her husband at his workplace on a Saturday when this incident occurred on a Wednesday.  She only heard of the alleged extra marital affair between her late husband the now deceased and accused’s erstwhile wife here in court.

Beatrice said on the fateful day she went to the business centre with the now deceased and left him drinking beer with his friends at Nemauku business centre.  The now deceased then came home before sunset after which they had supper.  They retired to bed in same room with their 6 year old son.  Late in the night Beatrice said she heard the bedroom door opened and saw the silhouttee of a person wielding an axe.

The intruder did not say anything.  We now know that this intruder was the accused.  Beatrice said she woke up the now deceased alerting him of the presence of the intruder.  The now deceased woke up and was flashed on the face with a torch by the accused.  The two man handled each other and fell to the floor.

Beatrice explained how the now deceased was attacked.  She said the accused struck the now deceased with an axe he was wielding causing the now deceased to scream in pain.  When the second blow was delivered the now deceased did not scream.  Due to fear Beatrice bolted out and hid in a nearby maize field.  As she was hiding she could hear the thudding sound of an axe as accused attacked the now deceased.  She ran to seek help at neighbouring homestead.  Upon her return with the neighbours the accused had vanished and the now deceased was dead.  Their 6 year old son had also fled from the bedroom.  At day break she then saw the multiple injuries inflicted on her husband the now deceased on the head and the broken arm.  The multiple head injuries were on both sides of the head.

We find it baffling that when accused attacked the now deceased in darkness with the axe he did not say anything or identified himself.  One can therefore infer that accused did not want to be identified or that the purpose of his nocturnal visit to be known.  If indeed he had wanted to discuss anything with the now deceased one would have expected him not only to announce his presence at the now deceased’s residence but to also identify himself and not to stealthly enter into the now deceased’s bedroom.  The fact that the now deceased was poised for a fight is reinforced by the fact that he was armed with an axe.  Indeed accused was keen to conceal his identity as he vanished after fatally attacking the now deceased.

Samson Manyathi (Samson) is the detail who first attended the scene of crime and later arrested the accused.  At the scene he observed the multiple injuries inflicted on the now deceased.  He managed to trek accused’s footprints from the scene of crime up to accused’s residence.  The footprints first led him to a stream where the accused washed the blood stained axe.  Accused was not at his residence.  Samson then laid an ambush and later arrested accused being assisted by a colleague called Marasha.  He said initially accused denied any knowledge of the offence but only admitted to the charge when police details from Zaka arrived and took over the matter.  Samson said it was at that stage that accused led to the recovery of both the axe head and axe handle which were hidden at different places.

Samson confirmed that the accused had separated from his wife and that at some point in the past Samson had served summons for maintenance issued out by accused’s wife upon the accused.  He said upon being asked why he had fatally attacked the now deceased on day in question all the accused could say was that the now deceased had an extra marital affair with accused’s wife without elaborating as to why accused harboured that belief.  Samson further pointed out that accused stayed 3km away from the now deceased’s residence.

The Investigating Officer Sergeant Raymond Nyamvura (Sergeant Nyamvura) only attended the scene after accused’s arrest.  He too confirmed the injuries on the now deceased being several wounds on the head, on rib cage and a broken arm.  Upon interrogation accused later admitted to the charge and gave a statement Exhibit 3.  Accused led him to recovery of axe head hidden behind accused’s hut and the axe handle at a separate place.  Accused told him he had killed the now deceased because the now deceased had had an extra marital affair with accused’s wife in 2016.

Sergeant Nyamvura testified that he investigated the allegation by the accused but did not make much headway as accused’s ex wife Anna Maria had relocated to Harare and her whereabouts were unknown.  He could only interview the relatives of accused’s ex wife who revealed to him that accused’s wife had left the matrimonial home because of the accused’s violent disposition and abusive nature coupled with unsubstantiated allegations of infidelity hinging on unbridled jealousy.  He established that accused’s marriage had been a turbulent one as his wife had fled from the accused several times due to accused’s violent conduct and that accused had disowned a child born out of this marriage alleging the child had not been sired by the accused.  Sergeant Nyamvura said even accused’s young brother confirmed accused’s allegations of infidelity against his wife and that accused had failed to substantiate these allegations to his relatives.  It was sergeant Nyamvura’s evidence that accused never revealed to him that the now deceased had verbally provoked the accused on the fateful day as alleged by the accused in court.  Instead accused disclosed to him that after drinking beer at the business centre 6km from accused’s residence the accused who was staying alone returned to his residence and decided to proceed to the now deceased’s residence some further 3km away as accused blamed the now deceased for the break of his marriage.  Sergeant Nyamvura said when he probed accused on these allegations of infidelity the accused could not provide any further details or substantiate them.  In fact the accused never revealed to Sergeant Nyamvura that accused at any stage had caught the now deceased having sexual intercourse with accused’s wife or in the company of accused’s wife.  The accused never mentioned the alleged provocation referred to by the accused in his evidence in relation to the change of surname on the child’s birth certificate.  The accused could not provide any evidence or names of persons aware of the said love relationship between the now deceased and accused’s wife.

What emerges from all the evidence adduced before us relating to the alleged infidelity of the accused’s ex wife is that the allegations of infidelity made by the accused against the now deceased remained unsubstantiated.  It is clear to us that the detailed allegations espoused by accused in his evidence in court were never put to the police or revealed to the police at the time of accused’s arrest.  Further, they do not form part of the accused’s confirmed warned and cautioned statement.  Our conclusion is that such details are merely a result of fabrication or after thought on the part of the accused because if not he would not have failed to disclose such material evidence.

The defence of intoxication raised by the accused should not really detain us.  Mr Mureri for the accused concedes in his written closing submissions that the degree of accused’s intoxication as raised by accused was exaggerated and untruthful.

In terms of S221 (1) of the Criminal Law (Codification and Reform) Act Chapter 9:23 the accused dismally failed to show that he lacked the requisite mens rea to kill the now deceased due to intoxication.  It is clear from the evidence before us that accused had a clear recollection of the of events of the fateful day and that his perceived amnesia is simply untruthful.  We say so because accused knew even minute details like type and quantity of beer he consumed, the various times he alleges events unfolded (i.e time he met the now deceased, time he spent drinking beer, time he left for his home,), he could recall his conduct inside the now deceased’s house, what he did after killing the now deceased (i.e washing blood stained axe and hiding it).  Our finding is that whatever quantity or type of alcohol accused had consumed it did not at all viciate his intention to kill the now deceased.  At most it can simply be mitigatory.  The accused never lost control of his faculties due to intoxication and there is nothing to show that he was hopelessly drunk.  We are inclined to accept the state’s view that he consumed alcohol to simply gather the so called Dutch courage.

Lastly, we turn to the defence of provocation as provided for in S 239 (1) of the Criminal Law Codification and Reform Act [cap 9:23]. See also  A Guide to Criminal Law of Zimbabwe by G. Feltoe 2004 edition at pp 29.

It is settled in our law that the defence of provocation is not a complete defence to a charge of murder.  If proved successfully, it is a partial defence which reduces the charge of murder to one of culpable homicide.  The accused has to show that due to provocation he lacked the intention to kill for him to be found guilty of a lesser charge or that he indeed had the intention to kill but lost self control due to such provocation in circumstances where a reasonable person in his position would lose self control.

We find the accused’s evidence in this regard to be muddled up less precise and unconvincing. While it is clear that accused harboured the belief that his ex wife had an extra marital affair with the now deceased we are not satisfied that there was an objective factual basis for such a belief to such an extent that a reasonable person in accused person’s position would lose self control.  This explains why the accused’s evidence is laced with falsehoods in this regard simply to buttress such a defence.  There is nothing to suggest the accused actually found the now deceased having sexual intercourse with his wife or that the now deceased boasted about having sired a child with accused’s wife.  All this is simply an after - thought on the part of the accused hence it was never revealed to the police or in his statement. Indeed if events had unfolded in the manner accused now alleged one would have expected the accused to have lost self control of the time he found his wife being intimate with the now deceased or of the time he was being taunted by the now deceased about his infertility.  It is therefore inconceivable that the accused would instead control himself at all such times only to lose self control later while at his residence.

Our finding is that the accused simply believed rightly or wrongly that the now deceased had an extra marital affair with his wife.  On that basis he formulated an intention to kill the now deceased.  This explains why he carried a heavy axe for 3 kilometres going to the now deceased’s residence.  It explains why he attacked the now deceased under cover of darkness concealing his identity.  The accused was not keen to be identified hence he did not say anything and attempted to conceal evidence by washing the axe and hiding it.  The murder of the now deceased was clearly planned and brutally executed.  The accused did not lose self control at all, but he had the presence of mind to execute his plan.  At most we find that the alleged provocation on the part of the accused can simply be mitigatory rather than a partial of defence to the charge of murder.

In the result we find the accused guilty of murder with actual intent.

VERDICT:	Guilty of murder as defined in S 47 (1)(a) of the Criminal Law (Codification and Reform) Act [cap 9:23]:- murder with actual intent.

National Prosecuting Authority, counsel for The State

Matutu and Mureri, pro deo counsel for the accused.