THE State V Musaida Arishandaba Ngorima

### Preamble
1
HMT 86 -20
CRB 43/20
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THE STATE

versus

MUSAIDA ARISHANDABA NGORIMA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE 10, 13 19 and 23 November 2020

Criminal Trial

Assessors 1. Mr Chipere

2. Mr Mudzinge

Ms T. L. Katsiru, for the State

N Nhambura, for the Defendant

MWAYERA J: In this case the deceased tragically lost her life at the hands of her 44 year old biological son. In a dispute shrouded with imputation of witchcraft as cause of misfortunes another domestic violence related death accured. The accused pleaded not guilty to the charge of murder levelled against him by the state.

The state alleged that on 8 April 2018 and at house number 2735 Chikanga 2, Mutare the accused person unlawfully caused the death of Agnes Ngorima by assaulting her several times on the head using a hoe intending to kill her 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 the said Agnes Ngorima died.

The brief summary of the facts of the state case are as follows-:

On the fateful day the accused approached the deceased’s homestead 2735 Chikanga Phase 2 armed with a small metal hoe. The accused and deceased had a misunderstanding over an issue of witchcraft which culminated in accused striking the deceased several times on the head with the hoe. Upon hearing the screams of the deceased one Dambudzo Mashoko rushed to the scene whereupon he observed deceased in a pool of blood. He then took the deceased to Mutare Provincial Hospital where she was admitted and latter passed on 26 May 2018.

In denying the allegation the accused sought to rely on the defence of provocation. In his defence outline which was latter incorporated as evidence in chief accused highlight that they had a confrontation with his mother. The accused questioned the mother on whether she was the cause of death of the children his siblings and whether she was the cause of sickness of his sister and misfortunes in the family. In the heat of the moment the mother picked a brick or stone and attempted to strike the accused. He dogged the attach and picked a small garden hoe that was on the ground and struck the deceased. The accused pointed out that he acted in anger when he struck the deceased but he had no intention to kill the deceased. The accused  stressed that the provocation was worsened by the fact that he was intoxicated. He pleaded guilty to culpable homicide, which plea the state did not accept and thus a fully-fledged trail proceeded. The issue to be decided on in this case considering the accused’s defence and plea to culpable homicide is whether or not when the accused struck the deceased he had the requisite intention actual or legal.

The state adduced oral evidence from Eddington Mutope a neighbour to the deceased. The witness recounted events of the day in question. He was by the road in the company of friends when he observed the accused proceed to his mother’s residence. According to the witness the accused who appeared to be drunk as evidenced by his giate of staggering appeared as if he was holding something in his hand. According to the witness it was around 1930 hours and that shortly after that accused passed about 20 minutes later he heard a woman screaming. The witness together with his friends drew closer to investigate. Upon lighting his torch he observed the deceased lying on the ground bleeding from the forehead and accused was standing wielding a blood strained metal hoe in his hand. The witness and colleagues tried to apprehend the accused but accused was violent and they fled for safety. They then observed from a distance when another neighbour disarmed accused and took the deceased to hospital. The witness’s evidence which was confined to his observations was clear. Even during cross examination he maintained that he observed accused proceeding to his mother’s place while holding something. The witness did not witness the actual striking of the deceased as he was only drown to the scene upon hearing screams from the deceased. He gave his evidence well and we held him as a credible witness whose evidence we accepted wholesome.

All the other 6 state witnesses’ evidence was formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act. [Chapter 9:07] the evidence was on none contentious issues. Dambudzo Mashoko a member of the Zimbabwe National Army’s evidence was essentially that his attention was roused by the screams of the deceased. He, upon arrival wrestled with the accused who was holding a hoe. He disarmed and apprehended the accused. The witness also observed the injured deceased who was in a pool of blood and this prompted him to ferry her to hospital and also report the matter to police.

Kudakwashe Chidzangu’s evidence was essentially that the matter was initially reported as attempted murder but when the deceased passed the charge of murder was instituted. This led to the Investigating Office Ivy Mutsago and team re-recording a warned and cautioned statement from the accused. The witness further caused a sketch plan to be drawn following indications from the accused and witnesses. The murder weapon was also recovered. All evidence on common cause aspects was formerly admitted by consent.

The accused’s confirmed warned and cautioned statement was admitted in evidence as exh 1.	In the statement accused pointed out that he struck the deceased using a hoe after they failed to understand each other over family problems he asked her about. He stated that she attempted to strike him with a brick saying he should not expose her following which he took a hoe and struck her 3 times before she was ferried to the hospital where she died after about a month.

Prior to her death the deceased was examined by Dr Zimbovora who compiled an affidavit in terms of s 278 (2) of the Criminal Procedure Act [Chapter 9:07]. The doctor observed injuries on the patient namely Intracerebral Haemorrhage+area of infarct in right occipital region and depressed skull fracture. He concluded the injuries  could cause permanent disability and death. True to the doctor’s observations and conclusions the deceased died. The medical affidavit was admitted in evidence as exh 2 by consent. A certificate of death confirming causing of death as head injury was also adduced in evidence and was marked as exh 3 by consent. The sketch plan showing the general layout of the scene per indications by witness and accused to police Officer Sargent Mutsago was tendered as exh 4 by consent. A certificate of weight of the metal hoe was admitted in evidence as exh 5 by consent. It revealed that the hoe weighed 1,632kg. The metal hoe itself was also produced as exh 6.

The accused was the only witness in the defence case. He was consistent that he fell out with the deceased his mother whom he accused of practicing witchcraft which brought about deaths, misfortunes and illness in the home. According to the accused deceased asked him not to expose her and attempted to strike him with a brick or stone which he dogged and he then struck her with a hoe. The accused told the court repeatedly that they exchanged bad words or harsh words with his mother and that the bad words uttered by his mother provoked him. Despite being repeatedly asked about the bad words or harsh words and their nature the accused was none committal. He did not divulge the words that provoked him to the extend of losing it and then hacking his mother with a hoe. When pressed further during cross examination he stated that the deceased advised him to leave the premises as he was a thief. Again according to the accused when he struck the deceased she was moving away from him which means her back was to the accused. This meant the accused was not in danger from any attack from the   deceased at the time he attacked.  Further the accused stated that the first two blows with a hoe were warnings and the third blow was quite heavy. One fails to understand what warning he was giving directing blows to the head. In any event going by his defence then he had ample time to think and consider options of giving a warning attack and then final blow. This is contrary the suggested defence that he lost it in the heat of the moment and struck deceased. As a witness the accused did not farewell as he was exposed during cross examination. The fact that he failed to narrate the provocative conduct and provocative words uttered by his mother goes a long way in exposing him as not being candid with the court. Generally the accused’s version was riddled with gaps which emanated from there being no evidence to relate to the provocation sufficient to vitiate intention.

The defence of provocation the accused sought to rely on is provided for in s 239 of the Criminal Law (Codification and Reform) Act. The section makes it clear that provocation is a partial defence to a charge of murder reducing it to culpable homicide if the requirements are met. Section 239 (2) states

“for 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 (i) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty – eight”

In this case the accused cannot motivate the defence of provocation as he clearly could not specify what actions or words by the deceased provoked him. If he was nursing a grudge based on  his beliefs in witchcraft and that the deceased was a witch, responsible for deaths, illnesses and misfortunes bedevilling the family then that is not consistent with provocation as envisaged in s 239. Nursing a grudge instead presupposes premeditation and formulation of intention and course of actions to take. Even if we were to accept that the accused was angered by the mother saying he should not expose her and that he should leave the home since he was a thief that would not amount to provocation occasioning  loss of self-control by a reasonable person. The reaction of striking twice as a warning and then striking a third blow as a real heavy  blow cannot be said to be an action by someone who has lost control and acting at the spur of moment. It was a clear calculated warning then immobilising blow by accused’s say so. Immediately before the attack the deceased had her back to the accused as she was walking away. In fact it is settled that provocation should only be accepted as a partial defence if there was spontaneous reaction showing loss of self-control, mere anger and resentment is not sufficient. See State v Sibanda HB139/18 and also Zimpack Pvt Ltd v Mugarabi SC 196/94. In the present case the accused entertained and nursed a grudge that his mother was a witch and thus he proceeded to her home for purposes of confronting the “witch”. We have no reason not to believe the state witness who observed accused holding something as he approached his mother. The sequence of events of under taking the journey to deal with “a witch” and actually confronting her and giving 2 warning strikes to someone retreating and then delivering a heavy blow are consistent with formulation of intention. The alleged provocation in casu is not sufficient to vitiate intention.

Our position in fortified by the fact that the accused in his confirmed, warned  and cautioned statement displayed that the attack on his mother was well calculated when he stated

“she took a brick intending to strike me with it. I took a hoe and struck her 3 times. The first time and second time were warnings she did not oblige I then struck her for the third time, she was ferried to Mutare Provincial Hospital where she died after a month”

The accused during cross examination by the state counsel revealed that when he struck the third blow using the metal hoe he delivered a heavy blow since the deceased failed to understand and was walking away. It is apparent from the evidence that accused fend up feelings against his mother over allegations of witchcraft. He set out with a motive to confront her and deal with his mother. He sought to rely on witchcraft provocation in circumstances devoid of acting on the spur of the moment. The evidence does not reveal spontaneous reaction to provocation but display nursing of a grudging and going out to exert revenge. In the case of S v Hamunakwadi HH 323-15 the court commenting on witchcraft provocation stated the basic elements required for a successful defence of witchcraft provocations as follows:

“1. 	The act causing death must be proved to have been done in the heat of the passion that is in anger, fear alone even fear of immediate death is not enough.

The victim must have been performing in the actual presence of the accused some act which the accused genuinely believed which an ordinary person of the community to which the accused belongs would generally believe to be an act of witchcraft against him or another person under his immediate care

A belief in witchcraft per se does not constitute a circumstance of excuse or mitigation for killing a person believed to be a witch or wizard when there is no immediate provocation act.

The provocation act must amount to a criminal offence under Criminal Law

The provocation must be not only grave but sudden and the killing must have been done in the heat of passion...”

In the present case the deceased was not found performing some act of witchcraft or at least having paraphencelia which was being used to harm accused and others to warrant the accused to act at the spur of the moment. There was no conduct from the deceased which would make a reasonable person in the same circumstances as accused be provoked and loose self control. Even if we were to accept the accused found the hoe at the deceased’s house yard his reaction to imagined rebuff of his confrontation on speculative witchcraft allegations does not qualify as provocation negating intention. See S v Sahumai HH 326-15. As correctly observed by both state and defence counsel Ms Katsiru and Mr Nhambura (who by the way we must commend for timeous filling of comprehensive submissions) from the totality of the evidence there is no provocation occasioned on the accused which warranted the slashing of his mother the deceased’s head three times with a metal hoe. The defence of provocation/witchcraft provocation cannot be sustained in the circumstances of this case.  The accused further sought to rely on intoxication as a defence. Assuming he was intoxicated as observed by the state witness Eddington Matope, whom we had no reason not to believe, it is apparent the beer and or intoxicating substance was partaken so as to clothe the accused with boldness to face his “witch of a mother”. The evidence on record shows that the accused appreciated what he was doing. In any event voluntary intoxication is not a defence. See S v Musina 2020 ZLR (1) 498

Section 221 and s 223 of the Criminal Law Codification and Reform Act are instructive. It is clear from s 221 makes clear that intoxication is not a defence to crime committed with the requisite state of mind. As in this case the accused appreciated the nature of blows which he directed to the deceased head. If anything the intoxication was to facilitate the commission of the crime as envisaged in s 223 of the Criminal Code, intoxication facilitating the commission of crime. Section 223 states

“1. Notwithstanding any other provision of this part, if a person

Having formed an intention to commit a crime, becomes voluntarily intoxicated for the purpose of enabling him or her to commit the crime of facilitating his or her commission of the crime and

While so intoxicated, does or omits to do anything which, if done or omitted, as the case may be, with the requisite intention, would be essential element of a crime. The person may be convicted of the crime concerned on the basis of his or her original intention, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing convened

Notwithstanding any other provision of this code, if a person becomes voluntarily intoxicated realising that there is a real risk or possibility that he or she in his or her intoxicated condition, engage in any conduct for which he or she may be held criminality liable, he or she maybe convicted at the crime constituted by the conduct on the basis of his or her original realisation in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned”

In this case the accused set out to confront the supposed witch, his mother. He decided to first partake of intoxicating substances and went out all armed and ready to confront on basis of belief she bewitched the family members caused deaths, misfortunes and illnesses. The intoxicating substances was partaken to fortify the courage to confront and indeed accused was appreciating what he was doing when he confronted the deceased. Having plucked the courage to confront the accused proceed to accost his mother on allegations of being a witch. When the mother was dismissive of the accusation and walking away the accused struck her using the blade or sharp edge of the metal hoe thrice on the head. The deceased screamed and fell in a pool of blood. When state witness Eddington Matope and friends come to and assist accused could have none of that as he chased them away still holding the blooded murder weapon. It took intervention of a soldier one Dambudzo Mashoko  for the accused to be disarmed and then the now deceased to be attended to. Intoxication in this case cannot exonerate the accused who partook intoxicating substance to bolster courage to commit the offence.

It is apparent from the totality of the evidence that the accused set out to strike the deceased with a metal hoe on the head at close range. The vicious attack was meted out with reckless disregard of the risk associated with the conduct thereby providing the necessary intention required in murder cases. See S v Llyody Mukukudzi and Another HH577/17, S v Zorodzai Moyo HMA 16/17 and the celebrated case of S v Mugwanda 2002(1) ZLR 574. In which he Supreme Court with clarity discussed the forms of intention actual and or legal intention. For murder charges to ascribe. The Supreme Court held that-:

“For the court to return a verdict of murder with actual intent, it must be satisfied beyond reasonable doubt either that;

The accused desired to bring about the death of his victim and succeeded in completing that purpose,

Or

That while pursuing another objective the accused foresaw the death of his victim as a substantially certain result of the actions and proceeded regardless”

In this case the accused set out armed with a metal hoe to confront his mother about witchcraft allegations. He struck her with the hoe in the head 3 times using the metal hoe in circumstances in which it was substantially certain that death would result. The intention of a person who strikes a vulnerable part of the body, the head with a lethal weapon like metal hoe severally is clear, it is to cause death. The state has in the circumstances proved that the accused had both the actus reas and mens rea when he unlawfully struck the deceased with an intention to kill her.

Accordingly the accused is found guilty of murder as defined in s 47 (1)(a) of the Criminal Law (Codification and Reform) Act [Chapter9:23].

Sentence

In an endeavour to reach  out an appropriate sentence we have considered all mitigatory factors in accused’s favour. We have also considered aggravatory factors in this case Mr Nhambura  submitted that the accused is a 44 year old first offender with responsibilities to take care of his 19 year old child. The accused admitted to negligently causing his mother’s death which is a sign of regretting his conduct of assaulting his mother. The accused will live with the stigma that attaches with murdering one’s own biological parent. We have also considered as mitigatory that the accused has been awaiting the finalisation of the matter for slightly over 2 years even though he was not in custody the suspense is not ease.

We are alive to the fact that belief in witchcraft may be considered as mitigatory. Section 101 of the Criminal Law Codification is not worded in peremptory language for the obvious reason that the sentencing court is to exercise its discretion holisticaly considering the circumstances of the case. In this case the accused’s belief in witchcraft is unreasonable as he actually had to partake intoxicating substances so as to pluck courage to confront his mother. The allegations of witchcraft were unsubstantiated. In fact, the fact that he went alone to confront his mother shows that the allegations were a figment of imagination. The accused could have involved the elders of the home and even village heads or chief and his mother’s relatives if he was so engrossed in the witchcraft beliefs. The loss of life in the 21st century over beliefs in witchcraft is unacceptable. The accused used a metal hoe to strike his biological mother’s head in circumstances were he could have sought a civilised way of resolving any disputes. Further in aggravation is the fact that this is a domestic violence related murder. The accused’s mother looked up to her son for love and protection but she was verbally and physically abused till she lost her life. What further aggravates the offence is the fact that accused abused alcohol or intoxicating substance so as to make sure he accomplishes the offence. A 65 year old woman lost her life at the hands of her own child. The God given right to life which is constitutionally guaranteed cannot be easily whisked away. Society abhores violence and courts have to weigh in and express their displeasure at uncivilised ways of resolving disputes which in most cases cause loss of precious human life. You exhibited a high degree of cruelty by striking your mother’s head with a lethal weapon and then standing to watch instead of rendering help you even chased away those who wanted to help. A clear sign of determination to achieve the unlawful enterprise.

Although no amount of compensation can bring back the lost life the fact that you have been out of custody but made no amends with your mother’s relatives shows a carefree attitude. The compensation is a good moral gesture reflective of regret of conduct. You have not even during trial exhibited a shred of regret of having caused your mother’s death.

In the African society it is a taboo to insult a parent let alone to raise a hand as you did in this case but you seem unperturbed.

The offence is deserving of a custodial sentence. Your removal from society for a lengthy period of time is called for so as to deter other likeminded disrespectful children.

You are sentenced as follows:

27 years imprisonment.

National Prosecuting Authority, State’s legal practitioners

Mugadza Chinzamba and Partners, Accused’s legal practitioners