State v Tendai Changurungudza

### Preamble
1
HMT63-20
CRB 35/20
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STATE

versus

TENDAI CHANGURUNGUDZA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 15 September and 17 September 2020

ASSESORS:	1. Mr Mudzinge

2. Mr Magorokosho

Criminal Trial

J Chingwinyiso, for the State

TT Sigauke, accused

MUZENDA J: The accused is being charged for murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged by the State that on 3 July 2019 and at Mutsai Village, Chief Makoni, Rusape, the accused unlawfully caused the death of Violet Chisango by striking her on the right side of the neck with an axe with intent to kill 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 thereby causing injuries from which Violet Chisango died.

The accused pleaded not guilty to the charge.

BACKGROUND

The deceased, Violet Chisango was aged 19 years at the time of her death. She was the wife of the accused. On 3 July 2019, the deceased teamed up with her friend Lioba Kabike, around 1400 hours and went to Shena Mountain to fetch firewood. They were joined by Munashe Mutsai, a brother to the accused and his mate Nomatter Chirima who were incidentally boyfriends to Lioba Kabike and the deceased respectively. The accused followed to the mountain around 1500 hours where he startled the deceased and Nomatter Chirima who ran away from a secluded place. The accused picked an axe where Munashe Mutsai and Lioba Kabike were. He followed and caught up with the deceased whom he took to Nomatter Chirima’s work place, Mandipazano Ezekiel Nyagumbo’s homestead, where he struck the deceased once with the axe on the right side of her neck. He took the axe and went away. The deceased died instantly. A report was made to the police. The deceased’s body was taken to Rusape General Hospital. A post mortem conducted established the cause of death as due to right pneumorax penetrating chest trauma and assault.

STATE CASE

According to the State witnesses the chronology of the events leading to the death of the deceased is as follows. Munashe Mutsai, accused’s own brother was Nomatter Chirima’s friend. On 2 July 2019 deceased texted Nomatter Chirima requesting to meet him the following day, 3 July 2019. On 3 July 2019 the witness visited Nomatter Chirima at the latter’s workplace and informed him that the deceased and Lioba Kabike had gone to Shena Mountain to fetch firewood. Munashe was dating Lioba Kabike. The two agreed to follow the women to the mountain.

On arrival at the mountain, Nomatter Chirima took the deceased to a secluded place whilst Munashe remained with Lioba. Moments later the accused arrived where Munashe and Lioba were and asked Lioba the whereabouts of the deceased. Accused went to where Nomatter and the deceased were. Munashe later saw deceased running past advising Lioba that she had been discovered by the accused. She went away from the two. Accused appeared to Munashe shortly asking where deceased had gone. He was advised that she had gone home. Accused picked the axe which had been left by the deceased and left the scene.

Lioba Kabike’s evidence is almost on all fours with that of Munashe Mutsai. She however added that when Nomatter Chirima and deceased left them they went to a secluded place behind a rock. When accused returned from where he had gone to look for deceased, he blamed Lioba for not advising him that deceased was having an affair. She later learnt about the death of the deceased.

Nomatter Chirima was deceased’s paramour. On 3 July 2019 he was in the company of Munashe and proceeded to the mountain. His evidence tallies with that of Munashe and Lioba. He however pointed out that deceased told him that she was having problems with her husband and wanted to leave Mutsai Village. When the accused startled them, they fled in different directions from the scene. He fled to his workplace. After an hour from the time he fled, accused arrived at the witness’ workplace, dragging deceased and armed with an axe. Deceased was pleading with the accused to offer her an opportunity to explain what had transpired but accused could not have none of it. He observed that deceased was bleeding from the head. He saw accused striking deceased on the neck using an axe. Deceased reeled and accused removed the axe. Deceased reeled further for a few metres and then collapsed and died. Accused uttered words calling deceased, the witness’ bitch.

Mandipazano Ezekiel Nyagumbo is Nomater Chirima’s employer. On the fateful day around 1530 hours, he was at his homestead seated outside his kitchen hut when he saw accused dragging the deceased to his homestead. He saw accused striking deceased on the right shoulder close to the neck using an axe. Accused removed the axe from deceased’s neck and left. The witness called for help from his neighbours. He later went to where deceased was lying dead and saw that she was bleeding profusely. He later on phoned the police.

The foregoing evidence to us is not in dispute and the defence seems not to deny it. The exhibits produced by the State are also not in dispute.

DEFENCE’S CASE

Accused states in his defence that on the fateful day he was at home when the now deceased informed him that she was going to fetch firewood in the mountains and further she intended to leave an eight months old baby with him. Accused says he refused to be left with the baby and deceased left with the baby. He then resolved to follow his wife to assist her. When he got to the mountain area where deceased had gone to fetch firewood, he found his wife having sexual intercourse with one Nomatter Chirima behind a rock outcrop. Deceased and her paramour fled from the scene going in different directions.

The accused left the scene and proceeded to confront his cousin Mutsai Munashe who was also there with his girlfriend and asked him why he had not advised him about the deceased’s affair with Nomatter Chirima. When accused left Munashe Mutsai he proceeded home where he hoped to meet the deceased, but when he got home she was not there, so he decided to go out and look for her. He went to Nomatter Chirima’s homestead and found deceased there and he demanded to take his child home. A disagreement ensued over custody of the child and resulted into a physical tussle between accused and Nomatter. The accused managed to overpower Nomatter who then fled from the scene. Accused became infuriated at that point on the fact that the same man whom he had found sleeping with his wife, had now fought him and refusing to give him his child.

Out of anger and in the heat of the moment, he picked up an axe and struck the deceased three times and left. He did not check the state of the now deceased. He proceeded to the house and left for Harare. He adds that at the time he left he did not realise that the deceased had passed on. He was only advised later that she had died. He states further that he had no intention of killing his wife. To the accused he had been provoked by his wife’s infidelity which drove him into a sudden rage, but he admits that he was negligent in that he should have foreseen that his actions would lead to death of deceased. He requested that he be found guilty of culpable homicide.

Accused gave evidence in court and adopted his defence outline. Asked by his legal practitioner why his extra-curial statement was materially different from the defence outline, accused stated that he had decided to be candid with the court. During cross-examination by the State he admitted that the confirmed warned and cautioned statement was totally false more particularly on the events leading to the death of his wife. He confirmed during questioning by the State that he struck deceased three times, first on the shoulder, close to the neck, then twice on the head using a lethal weapon and he was conscious that the blows were aimed at a very vulnerable part of deceased’s body. He maintained that he did not foresee that deceased could die as a result of the blows but conceded that he was reckless as to whether deceased could die or not. Accused also admitted during cross-examination by the State that deceased did not fight back nor attack the accused, she was totally helpless and at the mercy of the accused.

During questioning by the court, accused could not explain the sequence of events leading to him striking the deceased. He did not explain where the child was at the time he struck the deceased. On one occasion he wanted to convince the court that he did not see the child when he got to Mr Mandipazano’s homestead. When his defence outline was read to him particularly paragraphs 7 and 8, he changed his story and stated that what is contained in the defence outline is the correct position. At the scene where he alleged he found deceased and Nomatter having sexual intercourse, he told the court that he did not do anything to attack either of the two. He controlled himself, he only lost temper at Mr Mandipazano’s homestead. He confirmed that he had left the child behind where he had attacked deceased and did not take custody of the child, the very reason he said he had followed deceased to Nomatter’s homestead. The story of the accused is so difficult to follow, he entangled himself on material aspects which changed the form and substance of his defence. He does not fair well on why he was armed with an axe from the mountains up to where he struck the deceased to death.

The following aspects of this case are incontrovertible:

Though fairly a young couple accused and deceased’s marital relationship had reached sunset.

The deceased and Nomatter were in love and met together on the fateful day. We are convinced that given the period Nomatter was with deceased totalling to half an hour, at a secluded place, behind a rock, the two most probably were having sexual intercourse and were caught red handed by the accused.

The accused failed to “punish” the two at the scene.

Accused picked the axe from where deceased had dropped it going to meet Nomatter, and armed himself to look for the deceased. From the mountain he located deceased at the matrimonial home and dragged her to Nomatter’s workplace. On the way the accused assaulted deceased using the axe and then at Mr Mandipazano’s homestead, accused delivered a fatal blow on the neck, the axe stuck, and the accused extracted it, deceased reeled for a few metres and died instantly.

The accused took the axe and left the scene, leaving the child behind and deceased dead.

The post-mortem report shows that the nature of the injuries were indeed very fatal and exerted with a lot of lethal force. The axe exh 1 (b) is fairly sharp and very dangerous, the totality of the evidence about deceased’s death exhibits a brutal, merciless and heartless assault of the deceased. The fact that she died instantly shows the gravity of the accused’s conduct.

The evidence of the state was invariably admitted by the defence on major aspects and will be accepted by this court as common cause.

The questions for determination is whether the accused had the prerequisite mens rea to kill the deceased?

Section 239 of Criminal Law (Codification and Reform) Act [Chapter 9:23] reads:

239. When provocation a partial defence to murder.

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 maybe, with the intention or realisation referred to in s 47, the person shall be guilty of culpable homicide if, as a result of the provocation.

he or she does not have the intention or realisation referred to in s 47, or

he or she has the intention or realisation referred to in s 47, but has completely lost his or herself control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

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

he or she did have the intention or realisation referred to in s 47, or

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 s 238.

In a civil matter of Zimpork (Private) Ltd v Mugarabi  Korsah ja (obiter) stated and held that:

“provocation should only be accepted as a partial defence or mitigatory, if there was a  spontaneous reaction showing loss of control, mere anger or resentment is in-sufficient.”

In the matter of S v Ranchi it was held that:

“in any event, and this is the crucial point, the use of the provocation defence in a situation where a spouse is killed because of adultery would be unlikely to withstand survival under our present constitution. This is because s 52 which accords the right to personal security, categorically prohibits violence at the hands of both private and public actors.”

Courts have to apply a subjective formulation of capacity as far as provocation relates to intention. It must also be noted that the courts have broadened the concept of provocation to include emotional stress. In this case as already alluded to in this judgment accused’s late wife was having an affair with Nomatter and on the day this offence was committed the accused had travelled to the mountains where he found deceased with Nomatter Chirima. He did not attack the deceased at the scene of the alleged adultery. He literally let both deceased and Nomatter go. He picked the axe, proceeded home where he says he met his mother and spoke to her about the matter. We are not privy as to what accused discussed with his mother. He then decided to take the deceased to Nomatter, deceased was carrying the child at her back and the accused was holding her with one hand whilst the other hand was holding the axe. He admits that he assaulted the deceased on the way to Nomatter’s workplace. He admits that he struck the deceased on the head three times using an axe. He seems to recall thoroughly what happened on the day in question and remember the positions on the body of the deceased where he struck her. We do agree with Mr Chingwinyiso’s submissions that the accused’s conduct falls well below par the legal requirements cited in the cases cited above herein. However we are unable to agree with the State’s submissions that accused forced his anger on the wrong person. Both deceased and Nomatter gravely provoked the accused although we do not agree that the accused acted at the heat of the moment.

As well conceded by Mr Sigauke in his  submission, there was a significant lapse of time from the moment of discovery of the sexual act in the mountain up to the time accused chopped deceased at Mr Nyagumbo’s homestead. Due to that break of events we are unable to accept accused’s defence because it was not a spontaneous reaction showing loss of control. As properly pointed out in the case of S v Stephen (supra).

“once a person is capable of some self-control of his actions he becomes capable of forming mens rea and therefore liable in law of his actions.”

Accused ought to have lost his control at the time he found deceased sleeping with Nomatter not almost an hour later when he deliberately took deceased to Nomatter’s workplace and brutally attacked her.

The accused had time to rationally deal with the crisis. He could have sought advice from the elders, village head or chief. He did not. We are convinced in this case that from the time he picked the axe he had planned to end deceased‘s life. We say so because there is a distance from where he picked the axe, to the homestead of Mr Nyagumbo. Accused does not explain why he retained the axe more so when he had got home where he spoke to his mother. He did not leave the axe there. He only threw it away in the garden after striking the deceased. From the time he picked the axe, the commission of this offence borders on preplanning and premeditated. He resolved in his mind to take deceased to Nomatter’s place and kill her there in front of Nomatter and he executed his plan successfully. We therefore find that the defence of provocation cannot be sustained in this case and it is rejected.

The accused chose to use a dangerous weapon of a well sharpened axe and struck the deceased on the head   and once on the neck. All the three sustained injuries are located on vulnerable parts of the body and each could have singularly led to death of the deceased. The accused deliberately chose the head and the neck and we are unanimous that he had the requisite mens rea in terms of s 47 (1) (a) of the Criminal Law and (Codification and Reform) Act to cause the death of the deceased. Deceased died on the spot and once the accused saw that he removed the axe from the neck of the deceased and went away. He knew what he had done and then fled to Harare. Upon his arrest he lied to the police by trying to shift blame to Nomatter Chirima. All these factors clearly establish the accused’s well formulated intent. We do not hesitate to find the accused guilty of murder with actual intent.

Sentence

In assessing the appropriate sentence, the court will take into account all the mitigatory factors and the submissions made in aggravation by the state. The accused was gravely incensed by the conduct of deceased and Nomatter. A man’s dignity is put to the whim when he discovers that his wife has been bedded by another. His privacy is invaded, his manhood is challenged and society subjects him to ridicule and the usual reaction by such a man is instant violent response, and resultant emotional stress. The legislature in s 238 as well as s 239 (2) of the Criminal Law (Codification and Reform) Act recognises this provocation as highly mitigatory though it will not amount to partial defence. I will factor in this aspect when formulating the ultimate sentence. Society generally does not condone the behaviour of people like Nomatter Chirima who knowingly dates a married woman staying in the same vicinity. However there are available remedies open to the accused as I now look at the aggravating features in this matter.

Accused prematurely caused the death of his 19 year old wife leaving a child of 8 months. That child will not get the benefit of both parents. The right to life is protected by our Supreme law, the constitution. I have also noted that there is a major increase in the number of family killings in particular the prevalence of violence against women and children, both in this country and abroad, this is a disturbing social problem which needs to be controlled by the nature of punishment we pass on the offenders. Accused is literate, he went to school up to form four and he ought to have acted rationally by exercising self-control. He should have opted for non-violent means of resolving the matter than killing the wife.

Section 47 (4) (a) of the Criminal Law (Codification and Reform) Act provides that a person convicted of murder shall be liable to death, imprisonment for life, or imprisonment for a definite period of not less than twenty years. The brutal way accused attacked the helpless and harmless deceased could have appropriately attracted a death penalty but because of the circumstances of this matter where accused managed to premise his anger arising out of adultery, I will balance between mercy and justice. Even though there are these mitigatory factors in the form of provocation, the offence you committed remains very serious. You are sentenced as follows:

18 years imprisonment.

National Prosecuting Authority, for the State

Justice for Children Trust, for the accused