State v Malvin Chiwanda

### Preamble
1
HMT 37-21
CRB 11/20
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STATE

versus

MALVIN CHIWANDA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 15 and 17 June 2021

Murder Trial

ASSESSORS:  1. Dr Sana

2. Mr Mudzinge

M Musarurwa, for the State

C Maunga, for the accused

MUZENDA J: On 06 April 2019 at Muziti Village, Chief Makoni, Rusape in Manicaland, the accused allegedly assaulted Christopher Mazire, aged 72 years several times on the head, right eye and body using fists, feet and bashing his head against the wall. The now deceased died at Parirenyatwa Hospital on 16 April 2019, ten days later. The accused was arrested in January 2020 and charged with Murder as defined in s 47 (1)(a) or (b) of the Criminal law (Codification and Reform) Act, [Chapter 9:23].

Accused pleaded not guilty and in his defence outline Annexure B, he raised defence of self. Accused states in his outline that on 06 April 2019 he went to deceased’s homestead around 7pm, he wanted to collect a debt owed to him by the deceased amounting to RTGS 30. Upon arrival at deceased’s home accused greeted deceased and then demanded his money, since he wanted to travel to Mutare town the following day. Deceased went into his bedroom and returned with a wooden stick, which he used to assault accused all over the body. Accused grabbed deceased’s hands and slapped deceased and pushed him away. Accused denied assaulting deceased using fists, booted feet nor did he bash deceased’s head against the wall, he did not intend to cause his death. He slapped deceased in self-defence. Accused had no bad blood with deceased and prayed for his acquittal.

After hearing evidence of both state and defence the following is uncontroverted:-

Accused is a nephew of the deceased.

On 06 April 2019 deceased was seated at his homestead partaking brew and was patently very drunk.

Accused visited deceased at his homestead in the early evening of 06 April 2019.

The accused confronted deceased and brutally assaulted him resulting in deceased getting injured on the right eye and parietal region. He got swollen instantly after the assault.

Deceased fell unconscious and had to be assisted by his wife and aunt to be placed inside his house.

Accused was seen by deceased’s wife assaulting deceased using hands and hitting deceased’s head against the veranda floor and wall.

Accused was remonstrated but threatened deceased’s wife and went on to assault her that led deceased’s wife to telephone around for external help.

Deceased was defenceless.

Deceased died from the injuries sustained from the assault perpetrated by the accused.

What is to be determined is whether accused was acting in defence of self and whether he is liable for the demise of the now deceased.

Section 253 of the Criminal law (Codification and Reform) Act, (supra), creates a complete defence to the charge of assault when the accused did or omitted to do the thing when the unlawful attack had commenced or was imminent or when the accused believed in reasonable grounds that the unlawful attack had commenced or was imminent. The conduct by the accused should and was necessary to avert the unlawful attack. Further the same section provides that the means used to avert the unlawful attack was reasonable in all circumstances and any harm or injury caused by his conduct was caused to the attacker and was also not grossly disproportionate to that liable to be caused by the unlawful attack. Where the accused is facing murder charges, s 254 of the same Act, provides that where the accused successfully establishes defence of self in terms of s 253 except that the means used to avert the unlawful attack were not reasonable in all the circumstances, he shall be guilty of culpable homicide. The onus to prove the guilty of the accused always lies on the state but the circumstances surrounding the conduct of the accused leading to the commission of the offence which circumstances are sought to be relied upon by the accused to bolster his trajectory on defence of self is the domain and realm of the accused. A court has to apply first a subjective test and then an objective test to test whether the reasonableness or otherwise of the accused’s conduct can sustain self-defence.

Edith Mazire, deceased’s wife testified and told the court that, when accused arrived at deceased’s home, he uttered threats of both death and violence to someone at that homestead. She had observed that deceased was very inebriated since he had been imbibing traditionally brewed beer for the better part of the day. He was sitting on the veranda and a cup of beer close to him. Some music was playing to accompany the melancholy old man. He was someone not pausing threat even to a housefly. All of sudden after the threats of the accused, the wife heard deceased pleading with accused not to harm him or assault him. She left the kitchen to go and check what was going on outside and she found accused assaulting her husband using hands and hitting deceased against the floor of the veranda and adjacent wall structure. She joined her husband in pleading for mercy from accused to stop further inflicting assaults on deceased. She advanced where accused was. Accused did not like that movement, accused left deceased and advanced towards the witness threatening her and subsequently got to where she was and assaulted her too. The witness panicked and decided to go and contact Jane Mazire for assistance. She left the scene and accused was still assaulting the deceased. When she returned to the scene with Jane Mazire she found deceased lying helplessly. They assisted him to get into the house but observed that he had been badly injured, his right eye and back of the head were badly swollen.

Jane Mazire did not see accused assaulting the deceased. She observed the injuries on the deceased on the night of 06 April 2019. She decided to follow accused to his house to enquire from the accused as whether he knew the extent of the injuries he had caused on the deceased. Accused’s reaction was astounding, he was surprised that deceased was still alive for he had wished him dead. Jane was shocked and left accused’s place. The following day Jane saw that the condition of deceased was getting worse and advised the deceased’s wife to report the matter to the police and facilitate medical treatment.

Both witnesses impressed us as truthful witnesses, consistent, unbiased and unexaggerated. Edith Mazire did not see accused using feet to assault deceased. She did not see accused using any weapon and in our view she simply told the court what she perceived on the fateful day. She did not see deceased fetching a stick to attack accused, she did not hear accused asking about his debt from deceased. To Edith Mazire deceased was basically seated when accused attacked him, overwhelmed by the assault he messed himself by urinating where he was seated. We have no hesitation in accepting the evidence of the state witnesses in toto. Dr Javangwe, the pathologist concluded that the cause of death was due to pneumonia and subdural hematoma secondary to blunt force head injury. The head injury was observed by the state witnesses on the night of 06 April 2019 and these injuries were created and attributed to the conduct of the accused person on 06 April 2019. The state had managed to establish the accused’s actus reus leading to the death of the deceased.

Accused gave evidence and insisted that he was unlawfully attacked by the now deceased whilst accused was seated. First he was lying on the ground, then managed to kneel and bend over the deceased and slapped him once across the face and left the scene. In his defence outline he told the court that when he was assaulted by deceased he reacted by grabbing deceased’s hands, slapped him and pushed him away. Later during his oral testimony accused gave yet another version to the effect that, he grabbed deceased’s arms and legs and fell him to the ground, then he slapped him and left the scene. Accused did not perform well during his testimony, he failed to explain his conduct on the day in question, he prevaricated in explaining what led deceased to be injured. He was actually theatrical in court in trying to demonstrate how he defended himself against the deceased. Nonetheless he could not. We are left with no hesitation to find that the accused acted not in self-defence in attacking the now deceased. Right from the onset accused resolved to approach a drunken deceased and mercilessly and brutally assaulted him using hands and knocking deceased’s head on hard surfaces, leading to the fatal injuries. The attack was palpably unprovoked and deceased was defenceless. We dismiss accused’s defence of self as baseless.

The accused was obviously drunk, but under cross examination by the state he nade a number of implicatory concessions. He admitted that he used excessive force in assaulting deceased. He could have foreseen that his conduct could lead to deceased sustaining life threatening injuries. He admitted that physically he was stronger than the frail, aged and intoxicated deceased. The crucial question before us is whether accused is guilty of murder with actual intent? No weapon was used in this matter, now deceased died ten days later from the injuries sustained. It is noted that accused uttered irresponsible words of his desire to kill someone and later that he had wished deceased to die but those utterances do not establish actual intention. We do not accept in the circumstances that the requirements of s 47(1)(a) of the Criminal Law (Codification and Reform) Act, were established by the state. The facts capably established by evidence before us point to Murder with constructive intent, in contravention of s 47 (1)(b) and a Verdict of Guilty of Murder with constructive intent is returned.

Sentence

In arriving at an appropriate sentence the court will balance between the aggravatory and mitigatory aspects placed before us. Accused was young at the time he committed the offence. However after committing the offence he hid away from the police only to be arrested in January 2020 and has been in custody since then.

Accused brutally, mercilessly and recklessly assaulted a 72 year old uncle, his own uncle whom he relied on. Accused’s conduct is socially, morally and culturally reprehensible. Accused has no focus in life and he, being young and powerful chose an old man to bully by bashing his head on a hard surface. Deceased’s body immediately reacted by getting swollen showing unbearable pain. The question the court poses is why did accused behave like this? Would ZWL 30 justify loss of life? The sentence I am going to pass would show that society abhors this transgression against morals and values where the old generation is terrorised by young drunken and idle young men. In this case you were supposed to protect your uncle than subject him to humiliation by placing your hand on his face. You should have gone to the courts to claim your debt than assault an elderly man to death.

18 years imprisonment.

National Prosecuting Authority, state’s legal practitioners.

Maunga, Maanda and Associates, accused’s legal practitioners.