State v Takadu Oxford Mangwiro

### Preamble
1
HMT 47-20
CRB 14/20
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STATE

versus

TAKADU OXFORD MANGWIRO

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 25 February 2020, 26 February 2020, 18 June 2020 and 19 June 2020

Criminal Trial

ASSESORS:	1. Mrs Mawoneke

2. Mr Mudzinge

J Chingwinyiso, for the State

B. Majamanda, for the Accused

MWAYERA J: In this case the accused was arraigned before the court on one count of attempted murder and 3 counts of murder. First it is alleged that on 16 September 2018 at Mangwiro Homestead Marindire Village, Headman Mombeyarara, Chief Makumbe Buhera, Takadu Oxford Mangwiro unlawfully attempted to cause the death of Farai Mandigo by shooting at him twice with a 303 BSA rifle with intent to kill him or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility, secondly in that on the 16 September 2018 and at Mangwiro Homestead, Murindire Village, Headman Mombeyarara, Chief Makumbe, Buhera, Takadu Oxford Mangwiro unlawfully caused the death of Portia Mudhara, Sharon Mandigo, and Lisa Mandigo, by shooting at each one of them with a 303 BSA rifle with intent to kill them or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Portia Mudhara, Sharon Mandigo and Lisa Mandigo died. The accused pleaded not guilty to the charge of attempted murder and not guilty to all 3 counts of murder.

The accused’s defence outline was essentially that although he discharged the firearm he had no intention to kill the complainant in the first count. In respect of the deceased in the 3 murder counts he had no intention to kill neither did he realise that there was a real risk or possibility that his conduct may cause the deaths of the deceased persons. In his defence outline he alluded to having suffered a disease of the mind and that he suffered from a psychological breakdown or disintegration of his personality temporarily to negate his culpability. The brief facts forming the basis of the allegations are as follows, the accused employed Farai Mandigo as a domestic worker at his homestead. The accused implicated Farai Mandigo of having stolen his maize, rapoko, groundnuts, eggs and chickens. Following these accusations the accused then sacked Farai Mandigo from his duties as a domestic worker. On the fateful day the accused shot at Farai Mandigo with his rifle 303 but missed. The accused shot on target when he fired the same 303 rifle at Farai Mandigo’s family namely Portia Mudhara, (the wife) Sharon and Lisa Mandigo (the children). The 3 succumbed to the gunshot wounds and passed on. What falls for consideration in this case is;

Whether or not the accused attempted to kill Farai Mandigo.

Whether or not the accused when he shot the three deceased namely Portia Mudhara, Sharon Mandigo and Lisa Mandigo he had the requisite intention to kill the three.

The state adduced oral evidence from two witnesses and evidence of the 11 witnesses was formerly admitted by consent in term of s 314 of The Criminal Procedure and Evidence Act [Chapter 9:07]. The admitted evidence was on none contentious factual aspects. Also admitted was evidence of the attending police detail and investigating officer. The investigating officer’s evidence was basically to the effect that after receiving a report of attempted murder and 3 counts of murder he carried out an investigation and caused bodies of deceased to be ferried for post mortem. The witness after luring the accused who was in the mountains over the phone drew a sketch plan from indications by accused and witnesses. The witness also recorded a warned and cautioned statement from the accused. He further caused the rifle to be taken for ballistic inspection together with spent cartridges. He also caused the accused to be examined to ascertain his mental condition. Pursuant to these investigations documentary evidence was obtained which the state adduced by consent.

The post mortem report compiled by Doctor T Matsvayi detailing injuries observed on the remains of Portia Mudhara was tendered as exh 1 by consent. The doctor observed the entry and exit bullet injuries and multiple skull fractures and concluded that cause of death was polytrauma.  The same Doctor Matsvayi examined the remains of Sharon Mandigo. He observed the entry and exit wound on the chest and back and concluded that the cause of death was chest trauma. Also tendered in evidence by consent was exh 3 the post mortem report by Doctor Matsvayi after examining the remains of Lisa Mandigo. He observed 2 entry wounds in the abdomen and 2 exit wounds on the back and concluded that the cause of death was abdominal trauma. The accused’s warned and cautioned statement in which he stated “I will give my answer in the presence of my lawyer” was marked as exh 4 by consent. The sketch plan was also tendered as exh 5 by consent, marked as exh 6 by consent was the Ballistic Report compiled by Assistant Inspector Gundumure a firearms indication officer. The witness examined 2 rifles which both had been fired but rifle 303 BSA serial number B99819 matched 7x303 spent cartridges recovered from the scene. The 303 BSA rifle serial number B 99819 was tendered as exh 9 by consent and spent cartridges from the same rifle tendered as exh 9A. The investigating officer requested medical examination of the accused and the latter was procedurally and legally examined by 2 doctors at the instance of the state through Magistrate Court. The medical examination certificate by Doctor Maringe in terms of the Mental Health Act were tendered as exh 7 by consent and report by Edmore Mutetiwa a Registered Mental health Nurse exh 8.

Farai Mandigo narrated how he was engaged by the accused as a domestic worker on 16 March 2018 with an arrangement of payment being in kind and that at the end of the year he would be given a bovine. The witness narrated how he fell out with his employer the accused over alleged theft of maize, rapoko, groundnuts, chickens and eggs. The witness denied having stolen anything from the accused. He went out and upon return greeted the accused who did not respond but instead corked his firearm and discharged it from a range of about 8 metres. The witness knelt down and that is how he was missed by the shot following which he took to his heels and he heard a second shot. The witness then proceeded to Murambinda Police Station to lodge a report of an attempt on his life, upon his return in the company of police officers they received a report from Leeroy Zunzanyika that his wife and two daughters had been shot by the accused and thrown in a rubbish pit. According to the witness indeed he observed the remains of his family in the rubbish pit. There was a pool of blood in his bedroom and a trail of blood on the veranda up to the rubbish pit. The witness was dejected as he testified but that did not detract him from answering questions from both state and defence counsel. His evidence on material aspects of having been shot at and missed prompting him to invite the police remained intact even after cross examination. The witness did not have anything to hide as he confirmed all the rules outlined to him by the accused when the defence counsel canvassed the rules as follows.

“1.	That the witness was not to steal.

2.	That the accused did not want people who go to church.

3.	That the accused did not want people who drink beer at his homestead.

4.	That the accused did not want people or friends or visitors at his homestead.

5.	That the witness was not suppose to leave the homestead without notifying him.”

The witness was firm that he maintained all the rules by his employer the accused. He stated that when he was accused of theft he denied and accused reported to the police on 15 September. The investigation did not point to him as having stolen culminating in the accused terminating his services and ordering him to vacate premises. The witness and his family indeed packed to leave and went to the roadside to get transport. According to the witness it was difficult to secure transport as he had not been paid. In the evening the accused invited them to come back for the night and go away the following morning. It was apparent from the witness’s evidence that the accused fired at him not that he fired warning shots in the air. This was after the two had come from police station when the witness sought police intervention for him to be paid for services rendered. After being missed by a firearm the witness went to report to the police and only came back to meet with the horror of the death of his family. We must mention that the witness gave a satisfactory account of what transpired on the fateful day. He was forthright and credible.

Leeroy Zunzanyika a 16 year old testified orally. He pointed out that he started staying with the accused on 1 September 2018 after accused had requested for him from his elders pointing out that he had ejected Farai Mandigo and family and they were about to leave. The witness was to assist the accused with domestic chores. On the fateful day the witness served the accused with sadza which he partook. After eating the accused went indoors and came back armed. The witness Farai Mandigo asked if accused was going hunting to which the accused answered in the affirmative. Shortly after, the accused pointed his firearm at Farai Mandigo and discharged it. According to the witness Farai Mandigo knelt down thereby being missed by the bullet. As Farai was making good his escape the accused fired another shot in the direction of the witness. The witness’s evidence tallied with Farai Mandigo’s evidence on the attempt to the witness’s life. The witness further narrated how the accused upon his return from firing at Farai Mandigo confronted Sharon Mandigo who was standing in the compass. The accused shot the child at close range with the barrel of the gun touching the chest. The child Sharon fell to the ground upon being shot. Following that fall the accused proceeded indoors where the accused’s wife was crying and screaming. The witness narrated that he could hear Mrs Mandigo plead for mercy but accused could have none of that as he shot Portia Mudhara and Lisa Mandigo. After killing the 3 the accused carried their bodies one at a time starting with Sharon, then Lisa and dragged the body of the mother into the rubbish pit. The witness told the court that accused who was still armed with 2 guns gave him keys and bade him farewell pointing out that he was going to commit suicide. The witness gave an account of what transpired in a straightforward manner. His evidence was beyond reproach.

The accused was the only witness in the defence case. He maintained that he did not attempt to kill the witness Farai Mandigo but just fired in the air to emphasise that the witness and his family should leave. He also maintained he did not have an intention to kill the 3 deceased pointing out that when he shot at them he was under emotional strain and momentary insanity occasioned by continually seeing Farai Mandigo and family at his home and also having been harassed by the police at Murambinda Police Station because of him. During the defence case the accused told the court that he was harassed by the accused who claimed his dues and shouted that his children were starving and suffering. Further that the police details especially one officer Chidembo harassed and stressed him by telling him statements to the effect that his name meant he was a civet cat who if he was to emit smell the accused would not recover. The police were assisting the witness Farai Mandigo claim $240-00 dollars as his dues for the services rendered. According to the accused these actions and words harassed him extensively to the extent of occasioning psychological breakdown or disintegration. He then stormed out of the police station and walked a distance of about 5 km towards his home and he hitchhiked the other 7 km. When he later saw the witness Farai he then fired in the air twice directing the witness to leave his home. He stated that the 3 deceased were caught in the cross-fire due to the extreme harassment and provocation brought in by their father Farai Mandigo and the police. In giving evidence the accused who was quite dramatic gave details of the events before the fateful day and events of the fateful day. In his narration the common cause aspects of firing at the deceased at close range were confirmed. The accused insisted he was justified in shooting the deceased to force the witness and family to leave his home as his rules had been breached and he was provoked by their presence at his home. The accused impressed the court as a smart individual with a vivid recollection of events of the day in question. He carried out the execution of eviction of the witness and family while conscious of what he was doing. Generally the accused gave his evidence well. He impressed the court as an egocentric, carefree and wicked man. He was unperturbed by the events of the day in question. From his narration of the events one could however not align, deduce and perceive the harassment which occasioned temporal insanity. The provocation occasioned by the alleged theft of rapoko, maize, groundnuts, chicken and eggs had occurred days back. The police had come in to investigate and no links with the witness as a culprit were established. The provocation at the police station on the demand for dues to the witness occurred some 5km away and accused walked back home. Upon arrival he ate his meal and then thereafter started the firing spree. The sequence of the events clearly shows a break and gives no complexion of someone losing it because of extreme provocation and then acting on the spur of moment. There was clear built up of anger and nursing of a grudge occasioned by self-ergo. That is certainly not the provocation envisaged in s 239 when provocation is a partial; defence to murder.

Section 239 reads:

“(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.”

A reading of this section clearly shows that the defence is only available where the person seeking to rely on the defence lacked appreciation of the consequences of his actions.

In casu the accused’s evidence on underlying emotional stress occasioned by suspected theft of his property by Farai Mandigo and alleged harassment by the police over ill-treating Farai Mandigo and family is not provocation which would cause a reasonable man to loose self-control or lack of appreciation of consequences of firing a rifle at close range and even with the barrel touching on the victim on a mother and children. In any event going by the accused’s version the 3 deceased had not provoked him in any manner. Their sin was being the family of Mandigo. The defence simply cannot hold. See cases S v Musima 2010, (1) ZLR 49 and S v Docas Dume HH 170/03 for discussion that the defence cannot be sustained when raised visa vis a part who did not provoke the accused. Even as regards Farai Mandigo the accused exaggerated the stress brought upon him at the police station given he was not ordered to pay the complainant’s dues but advised to pay. Further the passage of time considering the accused walked a distance of 5km from the police station and further travelled 7 km by vehicle making a total of 12 km to his home, the accused had ample time to cool off. It is evident that the accused nursed anger and a grudge and was out to revenge and that in itself connotes premeditation and preplanning consistent with formulation of intention. The defence of extreme provocation and or harassment cannot be sustained in circumstances where there is room for formulation of intention. See S v Best Sibanda HB 139/18 S v Nangani 1982 (1) ZLR 150, S v Kavhura HH 1/15. The accused actually after walking 5km got home and was served with a meal which he partook only after he was full he went inside and came out armed. Upon being asked if he was going hunting he answered in the affirmative and started the shooting spree in a bid to revenge. The defence of provocation cannot be sustained where there is intention.

The accused also sought to rely on temporal insanity occasioned by psychological breakdown and disintegration. We must point out that the defence did not submit any further evidence on this defence other than mention on paper. The accused himself gave a vivid account of events of the day in question and days and years prior to the fateful day. The accused’s narration of events corroborated the evidence adduced by the state from Doctor H. Maringe and Edmore Mutsvetiwa a Registered Mental Health Nurse who examined the accused and certified him mentally sound. The accused person a member of the special constabulary, former teacher and freedom fighter contented in evidence and was firm that he was mentally sound even on the fateful day. The state witnesses Leeroy and Farai also confirmed. The accused version in his warned and cautioned statement that he would give his statement in the presence of his lawyer is indicative of a man appreciating the nature of charges. The defence of temporal mental disorder appeared to have just been suggested on paper but was not pursued. No evidence was placed before the court to warrant such a deduction of mental instability at the time of commission of the offence. The accused person in his narration did not pursue the defence. The defence of temporal insanity raised requires the accused seeking to rely on it to prove on a balance of probabilities that he was insane at the time of commission of the offence. Invariably expert evidence is required. The accused testified that he was extremely harassed angered and annoyed but denied being mentally unsound.  The mere say so of harassment does not amount to temporal insanity. No scientific evidence to the effect that when the accused shot the deceased persons he was suffering from a mental disorder or some diseases of the mind which would negate intent or prevent him from appreciating the nature of his conducts was adduced. See S v Romeo [1991] (1) SCR quoted with approval by Hungwe J  as he then was in S v Chikandiwa 2017 (1) LLR 95 (H) in which it was held that an accused is presumed sane until the contrary is proved.

In this case no evidence was adduced from an expert to state that the accused was mentally incapacitated or irresponsible at the time of commission of offence. The suggested defence of temporal insanity therefore crumples for want of evidence

From the totality of evidence it is clear that the state has proved the essential elements of both alleged attempted murder and murder as both the unlawful act of shooting and missing and shooting and killing and intention have been established. See S v Dube 1992 (2) ZLR 338 (SC). In the case of S v Mungwanda SC 19/02 the Supreme Court ably and clearly discussed the essential elements of murder detailing the components of intention.  It was stated that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that, either the accused desired to bring about the death of his victim and succeeds in completing his purpose or while pursuing another objective foresees the death of his victim as substantially certain result of that activity and proceed regardless see also S v Lloyd Mukukuzi and Anor HH 577/17.

In this case the accused unlawfully and intentionally attempted to kill Farai Mandigo when he shot aiming on the head and missed by chance when the complainant knelt down. Further the accused aimed his fire arm at Sharon Mandigo, Portia Mudhara and Lisa Mandigo at close range in circumstances were considering the shooting range, the lethal weapon BSA 303 rifle aimed at the head, chest and abdomen respectively, the intention was clear intention to kill.

Accordingly the accused is found guilty of attempted murder as defined in s 47 (i) (a) as read with s 189 (i) of The Criminal Law (Codification and Reform) Act [Chapter 9:23] and guilty of 3 counts of murder as defined in s 47 (i) (a) of The Criminal Law (Codification and Reform) Act [Chapter 9:23].

SENTENCE

In reaching at an appropriate sentence we have considered all mitigatory factors submitted in your favour by your legal practitioner Mr Majamanda. You are a first time offender who has lived a clean life for the past 72 years. You are married and your wife is fairly old 70. You contributed to the attainment of independence of this country. You are a senior citizen who also contributed to the education system as you are a former teacher. You were also assisting in policing duties. Your family assisted in customarily appeasing the bereaved family by paying some form of compensation and assisting in the burial of the deceased persons. That is a good moral gesture although it is over shadowed by the fact that no amount of compensation can bring back lost precious human life. Also migratory is the fact that you have been in custody for 1 year 9 months awaiting the finalisation of the matter. You are diabetic and have health issues as submitted by your lawyer.

You stand convicted of heinous and prevalent offence murder and attempted murder. You murdered three females generally, viewed as vulnerable mother, and 2 juvenile aged 4 and 1 respectively. The murder was brutal and it is spine chilling especially when one considers how you shot such defenceless people at close range. As if that was not brutal enough you in a wicked fashion showed disregard of the poor and weaker by killing them and then dumping the bodies in rubbish pit. What further aggravates the offence is the fact that the three deceased did not wrong you in any manner. All you wanted was to punish and torture the father and husband Farai Mandigo. You were unrelenting in the manner in which you took the law into your own hands indeed placing yourself above all. You fired and missed the complainant in the first count Farai Mandigo and turned your anger to his family which you mercilessly exterminated despite the pleas of the mother.

Further in aggravation is the fact that you were violent and killed in circumstances were loss of life could have been avoided. The complainant and family had not resisted vacating your home. The complainant simply sought police assistance for payment of services rendered to sustain his family. For that you made an attempt to kill his life using a rifle and proceed to kill his wife and 2 children.

Further in an aggravation as pointed out by the state counsel Mr Chingwinyiso precious innocent human life was lost through sheer wickedness of the accused. This court is duty bound to uphold the sanctity of human life. Two juvenile girls and their mother lost their life due to the accused’s violent and barbaric war like tendencies. The accused was unrelenting after missing the father he directed the lethal weapon a rifle at the 2 girls and their mother. The mother of the 2 girls must have died a painful death given the plea for mercy she scream to the deaf ear of the accused. The accused was stoic and unmoved by the cry of a mother for her children and her life. He fired at close range and brutally and callously murdered mother and two children. The high degree of cruelty exhibited by the accused is a clear demonstration of lawlessness. The accused a fully trained personnel in use of firearm, possessor of many firearm, former school teacher, freedom fighter and police officer special constabulary acted contrary to the discipline that goes with his ranks. He without self-restraint, recklessly disregarded all societal norms as he opened fire to erase a family with the power of his gun. Upon testifying in court the accused actually bragged of his capability and experience in use of firearms, that it required trained army personnel to subdue him. This was an unwarranted attack on innocent civilians who had not provoked him. Assuming his worker Farai Mandigo has stolen from him and the police exculpated him that would not warrant the shooting and subsequent killing. A conviction of 3 counts of murder with actual intention attracts severe punishment including life imprisonment or capital punishment. We are alive to the fact that the accused is in the evening of his life as a senior citizen of 72. He however did not impress the court as a responsible citizen considerate of other human beings. He throughout the trial did not show signs of genuine regret at having committed such grave offences. He appeared to be so engrossed in his superiority complex that he felt the exploitation and shooting of the poor was justified so as to drive them away since they had stolen his property. Such a stance falls foul of the Zimbabwean constitution in particular s 48 which guarantees the God given right to life. No one has the right to take away another’s life for whatever reason. The accused carried on as if he has a law unto himself and an appropriate sentence has to be imposed.

In this case having considered the circumstances of the 3 counts of murder and 1 count of attempted murder and upon weighing mitigatory factors and aggravatory factors, in seeking to strike a balance between the offence and the offender removal of the accused from the society is called for.

You are sentenced as follows:

Count 	1 	10 years imprisonment

Count 	2 	life imprisonment

Count 	3	 life imprisonment

Count 	4 	life imprisonment

The sentences on all the 4 counts are ordered to run concurrently.

National Prosecuting Authority, state’s legal practitioners

Khupe Chijara Law Chambers, accused’s legal practitioners