Emmanuel Mapfumo v The State

### Preamble
Judgment No. SC 74/21
1
Criminal Appeal No. SC B 85/19
DISTRIBUTABLE (71)
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DISTRIBUTABLE   (71)

EMMANUEL    MAPFUMO

v

THE     STATE

SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA & CHITAKUNYE AJA

BULAWAYO: MARCH 22 & MARCH 25, 2021.

M. Sibanda, for the appellant

M. Ngwenya, for the respondent

UCHENA JA:	This is an appeal against the whole judgment of the High Court Bulawayo, dated 21 March 2018, in which the appellant was convicted of murder with actual intent and sentenced to death.

FACTUAL BACKGROUND

The facts of this case can be summarised as follows. The appellant who at some stage went to work in South Africa came back on 2 October 2017 through Beitbridge Border Post. He came back with among his other possessions a pepper spray, pellet gun, electric shocker and an okapi knife. While still in Beitbridge he decided to rob someone of a motor vehicle which he wanted to take home and use it for purposes of raising an income. To achieve his objective he secured the services of Perfedious Moyo a commercial sex worker after which he hired Cliff Fungulani Chioza (the deceased) to drive them to Perfedious’ house. On arrival at Perfedious’ house the appellant instructed her to go and clean her room as he did not want to enter a dirty room. Perfedious went to clean her room while the appellant remained with the deceased at the motor vehicle pretending that he wanted to pay the deceased for driving them to their destination. Suddenly the appellant started subjecting the deceased to electric shocks with the electric shocker ordering him to get out of the motor vehicle and leave the key in the ignition.

The deceased did not obey the appellant’s instructions. He instead tried to drive away while the electric shocker was being used on him. He hit a concrete-wall damaging the motor vehicle’s rear view mirror. The appellant, who was determined to rob the deceased of his motor vehicle, took out his okapi knife and stabbed him in the chest. The deceased got out of the motor vehicle. The appellant got into the driver’s seat and drove away.

The deceased died at the scene of the robbery. The appellant went to spend the night at Lyna’s house in Beitbridge. Lyna is the appellant’s other girlfriend who also lives in Beitbridge. The next day he, with the help of his brother in law and his friend, fuelled the deceased’s motor vehicle and drove it to his rural home in Chatsworth Gutu. He gave the phones he had stolen from the deceased’s motor vehicle to his wife. He subsequently drove the deceased’s motor vehicle to Guruve.

The deceased’s death was reported to the police who came and left officers to guard his dead body till the next morning, when it was taken to Beitbridge hospital for a post-mortem examination.

The Police traced the appellant to his rural home in Gutu where his wife gave them information that he had driven the deceased’s motor vehicle to Guruve. With the help of the appellant’s wife, they tracked him to Guruve having confirmed that the deceased’s motor vehicle had been driven past Eskbank Tollgate in Mazoe. They failed to find the appellant in Guruve. They came back to Exkbank Tollgate and waited for him there. The appellant eventually drove to Exkbank Tollgate where he was arrested. The police took him to Beitbridge where they recorded a warned and cautioned statement from him. They also recorded statements from Bryan Maradzo, Josiah Mahweta, Lyna Chikwevo, Perfedious Moyo, and Gloria Fungai Mabika.

The appellant was eventually charged with murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded not guilty. In his defence outline he said he was not disputing the evidence of the following state witnesses:

Bryan Maradzo

Josiah Mahweta

Lyna James Chikwevo

Perfedious Moyo

Gloria Fungai Mabika

Detective Assistant Inspector Vusumuzi Buhle Sibanda

Detective Seargent Masendu.

He further indicated that he also confirmed and admitted the facts recorded in his warned and cautioned statement.

The state, led viva voce evidence from Brian Maradzo, Josiah Mahweta, Detective Assistant Inspector Vusumuzi Sibanda and Detective Sergeant Bothwell Masendu. The evidence of Lyna James Chikwevo, Perfedious Moyo, Gloria Fungai Mabika and Doctor Aramu Magodora was admitted by consent in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The evidence of Perfedious Moyo which was admitted by consent established the following:

That the appellant hired the deceased to drive him and his girlfriend (Perfedious) to her house.

That at Perfedious’ house the appellant remained with the deceased at the motor vehicle as Perfedius went to clean her room on appellant’s instructions.

That the appellant subjected the deceased to electric shock using his electric shocker as he instructed him to get out of his motor vehicle and leave the keys on the ignition,

That the deceased did not obey the appellant’s instructions as he tried to drive away.

That the appellant took out his okapi knife and stabbed the deceased in the chest.

That the deceased got out of his motor vehicle walked in circles and fell to the ground, as the appellant drove away in his motor vehicle.

That the appellant abandoned the purpose for which he had purportedly hired her.

That The Police came and attended the scene of robbery and murder.

The evidence of Bryan Maradzo and, Josiah Mahweta established that the appellant told them that he had bought a motor vehicle which was being serviced in Beitbridge. They eventually assisted him to fuel the motor vehicle. Josiah Mahweta who is the appellant’s brother in-law kept the appellant’s bag at his house. He eventually gave it back to the appellant who then drove the deceased’s motor vehicle to his rural home in Chartsworth Gutu.

Gloria Fungai Mabika’s evidence established that the appellant drove the deceased’s motor vehicle to their rural home in Chartsworth Gutu after which he drove it to Guruve and back to Exkbank Tollgate where he was arrested on his way from Guruve.

Lyna James Chikwevo the appellant’s other girlfriend established that on 2 October 2017 the appellant hired her as his all day client. He had in his possession a small black gadget with two red buttons which appeared to be an electric gadget.  At 2300 hours the appellant phoned his brother in-law informing him that he was on his way to collect his bag. The appellant left and came back to her house at 0300 hours where he again called his brother in-law about his bag. The appellant left with his satchel but left three cell phones which he picked up at 0445 hours promising to come back but did not.

I say these witnesses’ evidence established the above facts because the appellant agreed with it as per his defence outline. In his evidence in chief he also had the following exchange with his counsel:

“Q. What is your comment to that evidence, the entire evidence of the seven witnesses?

I am saying that what they are saying is what happened.”

The appellant further confirmed the state’s evidence from Detective Assistant Inspector Sibanda and Detective Sgt Masendu, when he agreed with what he had told them when they recorded his confirmed warned and cautioned statement in which he said:

“What happened is that I arrived in Beitbridge from South Africa armed with weapons which include a toy-gun, a knife, a choking spray and electric shocker on 2 October, 2017 at around 0800 hours. I had the intention of stealing a car which I was to take to my rural home and use in transporting passengers. I was in Beitbridge on that day and went to Kalahari Bar at Mashakada where I had observed some taxies being parked. I had a knife, an electric shocker, a choking spray and toy-gun which weapons I wanted to use to steal the car I wanted.

While outside Kalahari, I wooed a prostitute who told me that her name was called Chipo and she accepted to take me to the house where she stays. I then approached the now deceased who had parked his motor vehicle a Honda Fit registration number AEL4020 and hired him to take Chipo and myself to the Green House where Chipo stayed.

On our arrival at the Green House, Chipo and myself disembarked from the vehicle and I instructed Chipo to get into the house. I remained pretending {sic} to as if I was paying a fee of the hired taxi.

I then took out the shocker which I had and shocked him after the now deceased had refused to disembark from his vehicle trying to speed away with the motor vehicle, I then drew a knife which I had and stabbed him twice in his chest. Having stabbed him, he got out of the motor vehicle and I got into the vehicle and drove off from where I had killed him.

I then took two phones, a Vodaphone and a Mint and $7,00 which had been left by the now deceased in the vehicle.

I then went to Thornhill Extension, Chartsworth in Gutu where I left the phones and some of my property while I went to Guruve for a three-day prayer session at the Johanne Masowe Wechishanu Sect. I was then arrested by detectives at Exkbank Tollgate while driving the vehicle Honda Fit registration number AEL4020 on my way from Guruve to Gutu. In the vehicle there was an okapi flick knife and the shocker that were recovered by the police.” (emphasis added)

It was established during the trial that the commercial sex worker referred to as Chipo in the appellant’s warned and cautioned statement is Perfedious.

It is on the basis of this agreed evidence that the court a quo convicted the appellant of murder with actual intent and sentenced him to death.

GROUNDS OF APPEAL

Aggrieved by the conviction and sentence the appellant appealed to this Court on the following grounds of appeal:

Ad Conviction:

The court a quo misdirected itself and erred at law in finding the appellant guilty of murder with actual intent when the appellant did not have the actual intention to cause the demise of the deceased.

A fortiori the court a quo erred at law by completely disregarding the evidence of Emmanuel Mapfumo.

The court a quo erred in descending into the arena, the court a quo employed an inquisitorial approach as opposed to an adversarial approach in conducting the trial.

Ad Sentence:

The court a quo erred in imposing the death penalty, without satisfactorily addressing the alleged aggravating circumstances.

A fortiori. The court a quo erred and misdirected itself by paying lip service to the mitigating circumstances.

The court a quo erred in relying on the Assessors in coming up with a sentence.

THE ISSUES:

The appellant’s grounds of appeal raise the following issues:

Whether the court a quo erred by convicting the appellant of murder with actual intent and in imposing the death sentence.

Whether the court a quo descended into the arena.

Whether the court a quo erred by relying on Assessors in determining the appropriate sentence.

SUBMISSIONS, BEFORE THIS COURT.

Mr Sibanda for the appellant submitted that the court a quo erred when it found the appellant guilty of murder with actual intent as his intention was to rob the deceased’s motor vehicle hence his using the electric shocker until when he was being over powered by the deceased. He submitted that the appellant used the knife when he was being over powered by the deceased. He urged this Court to set aside the court a quo’s conviction of murder with actual intent and substitute it with a conviction of murder with constructive intent’

He alleged that the trial was vitiated by the court a quo’s descending into the arena when it asked questions as if it was taking over the prosecution of the appellant.

On sentence Mr Sibanda submitted that the court a quo erred when it imposed the death sentence in circumstances were the appellant merely wanted to rob the deceased of his motor vehicle through the use of the electric shocker. He also attacked the court a quo for failing to exercise its discretion in terms of s 10 (3) of the High Court Act [Chapter 7:06]. He submitted that its use of the word “we” in determining sentence proved that he allowed the Assessors to participate in the determination of the appropriate sentence when the law required him to determine, the issue of sentence though he could consult the Assessors as opposed to allowing them to usurp his responsibility.

Ms Ngwenya for the respondent submitted that the court a quo correctly convicted the appellant of murder with actual intent as he set out to commit the robbery armed with the electric shocker and the okapi knife. She submitted that the appellant embarked on a two staged robbery where he was to initially rely on the electric shocker, but had plan B if it failed in which case he would use the okapi knife as he eventually did. On the allegation that the court a quo asked questions which indicated that it had abandoned its role in an adversarial trial and had descended into the arena she submitted that the court a quo did not descend into the arena as the questions it asked were to clarify issues which is permissible in adversarial proceedings. On the alleged involvement of Assessors in determining the appellant’s sentence she submitted that the law allows a judge who should determine the appropriate sentence to consult assessors for their views on sentence even though the responsibility to determine the appropriate sentence remains the judge’s.

THE LAW

Section 47 (1) of the Criminal Law (Codification and Reform Act [Chapter 9:23] provides for the crime of murder as follows:

“47 Murder

(1) Any person who causes the death of another person

(a) intending to kill the other person; or

(b) realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder”.

Murder can therefore be committed with actual intent when the offender intentionally sets out to cause the death of another human being. It can also be committed when the offender engages in conduct which he or she realizes carries a real risk or possibility of causing death but nonetheless continues in such conduct despite the realization of the risk or possibility of death occurring as a result of that conduct. In Mutero v The State SC 28/17, this Court commented on actual intention to kill as follows:

“In his book, Principles of Criminal Law 5th ed p 350, the learned author, Jonathan Burchell defines dolus directus as follows:

‘This is intention in its ordinary grammatical sense the accused meant to perpetrate the prohibited conduct or to bring about the criminal consequence. This type of intention will be present where the accused’s aim and object was to perpetrate the unlawful conduct or to cause the consequence even though the chance of it was small’

The question whether the appellant killed her with actual intent is a factual one. The determination of the issue of mens rea must relate to the facts surrounding the commission of the offence with which the appellant was charged and convicted”.

In respect of sentence s 48 of the Constitution provides for the death sentence as follows:

“48 Right to life

(1) Every person has the right to life.

(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and—

(a) the law must permit the court a discretion whether or not to impose the penalty;

(b) the penalty may be carried out only in accordance with a final judgment of a competent court;

(c) the penalty must not be imposed on a person—

(i) who was less than twenty-one years old when the offence was committed; or

(ii) who is more than seventy years old;

(d) the penalty must not be imposed or carried out on a woman;” – (emphasis added)

The death sentence can therefore be imposed in cases were a murder is committed in aggravating circumstances by a person who was above the age of 21 years at the time the offence was committed, who is not more than 70 years old and is not a woman. The court exercises its discretion in determining whether or not to impose the death sentence.

The aggravating circumstances referred to in s 48(2) of the Constitution are provided for by s 47(2)(3)(5) of the Criminal Law (Codification and Reform Act [Chapter 9:23] which provides for sentences which can be imposed for murder as follows:

“(2) In determining an appropriate sentence to be imposed upon a person convicted of murder, and without limitation on any other factors or circumstances which a court may take into account, a court shall regard it as an aggravating circumstance if—

(a) the murder was committed by the accused in the course of, or in connection with, or as the result of, the commission of any one or more of the following crimes, or of any act constituting an essential element of any such crime (whether or not the accused was also charged with or convicted of such crime)—

(i) an act of insurgency, banditry, sabotage or terrorism; or

(ii)the rape or other sexual assault of the victim; or

(iii)kidnapping or illegal detention, robbery, hijacking, piracy or escaping from lawful custody; or

(iv) unlawful entry into a dwelling house, or malicious damage to property if the property in question was a dwelling house and the damage was effected by the use of fire or explosives; or

(b) the murder was one of two or more murders committed by the accused during the same episode, or was one of a series of two or more murders committed by the accused over any period of time; or

(c) the murder was preceded or accompanied by physical torture or mutilation inflicted by the accused on the victim; or

(d) the victim was murdered in a public place or in an aircraft, public passenger transport vehicle or vessel, railway car or other public conveyance by the use of means (such as fire, explosives or the indiscriminate firing of a weapon) that caused or involved a substantial risk of serious injury to bystanders.

(3) A court may also, in the absence of other circumstances of a mitigating nature, or together with other circumstances of an aggravating nature, regard as an aggravating circumstance the fact that—

(a) the murder was premeditated; or

(b) the murder victim was a police officer or prison officer, a minor, or was pregnant, or was of or over the age of seventy years, or was physically disabled.

[Subsection substituted by Part XX of Act 3 of 2016]

(4) A person convicted of murder shall be liable—

(a) subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], to death, imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3); or

(b) in any other case to imprisonment for any definite period.

(5) For the avoidance of doubt, it is declared that the circumstances enumerated in subsections (2) and (3) as being aggravating are not exhaustive, and that a court may find other circumstances in which a murder is committed to be aggravating for the purposes of subsection (4)(a)”.

It is clear that various factors of aggravation are provided for by these provisions. Factors relevant to this case are the commission of murder during the commission of a robbery and when the murder victim is tortured before he is murdered. In terms of s 47 (5) the court can make findings on aggravating factors not specified in s 47 (2) to (3).

On the court’s right to put questions to witnesses and the accused it is trite that the court is entitled to ask questions to clarify issues.

On the involvement of Assessors in the determination of sentence s 10 (3) of the High Court Act provides as follows:

“(3) At any criminal trial in the High Court the judge shall have the sole responsibility for fixing the sentence, but he may consult the assessors if he thinks fit.”

It is therefore permissible for a judge to consult Assessors before he determines the sentence to be imposed.

WHETHER, THE COURT A QUO, ERRED BY CONVICTING THE APPELLANT OF MURDER WITH ACTUAL INTENT AND SENTENCING HIM TO DEATH.

On appeal it was argued that the appellant should not have been convicted of murder with actual intent and should not have been sentenced to death.

The appellant accepted the evidence of state witnesses and admitted that he accepts the correctness of his confirmed warned and cautioned statement. He therefore admitted that he deliberately after premeditation set out to rob the deceased armed with the electric shocker and okapi knife. Robbery is the taking of the victim’s property through the use of violence or threats of violence intended to subdue him to the dispossession. It is an enterprise full of risks to the robber and his victim. Once embarked on, circumstances may arise which turn it into a death trap difficult to disengage from. It is foreseeable that a deadly fight for the property sought by the robber and valuable to the owner may result in the foreseeable risk leading to loss of life. It cannot be said that the appellant who was not prepared to let go the deceased’s motor vehicle did not have actual intent to murder the deceased. He had resolved to get the motor vehicle in a staged robbery. He could get it through the use of the electric shocker or if it did not achieve the desired result he would use the okapi knife which had a 15-centimetre long blade. That is what he eventually did, as he had planned when he armed himself with the two weapons.

I must comment on the appellant’s claim that he used the knife when he was being over powered by the deceased. That claim is unbelievable. How could he be over powered by the deceased who was inside his motor vehicle attempting to drive away as the appellant was subjecting him to electric shocks with his electric shocker to the extent that he could not properly drive his motor vehicle due to those shocks leading to his driving into a concrete-wall. The appellant was outside the motor vehicle. He could therefore have simply walked away if he was being over powered. He therefore did not use the knife because he had to, but because he was not prepared to let the deceased drive the motor vehicle away. He was determined to rob him of the motor vehicle at any cost, hence stabbing him in the chest which is a vulnerable part of the body.

The murder was committed in the course of a robbery which in terms of s 47 (2) (iii) of the Criminal Law (Codification and Reform Act is an aggravating factor. The murder was also preceded and accompanied by torture through the use of an electric shocker which in terms of s 47 (2) (c) of the Act is also an aggravating factor. It should also be taken into consideration that the appellant had premeditated on the commission of the robbery leading to the murder and had according to his confirmed warned and cautioned statement brought the weapons he mentions therein to commit the robbery which he executed after careful planning and with resolve. Therefore, the possibility of committing the murder lingered in his mind from the time he planned the robbery. He, after committing the robbery and the murder, did not show any remorse. He drove away in the deceased’s motor vehicle as if no life had been lost yet in his warned and cautioned statement he said:

“I then drew a knife which I had and stabbed him twice in his chest. Having stabbed him, he got out of the motor vehicle and I got into the vehicle and drove off from where I had killed him”.

He knew he had killed the deceased but his conduct thereafter does not show any remorse or concern. He clearly had no regard to the sanctity of human life. I am satisfied that the court a quo correctly found the appellant guilty of murder with actual intent and imposed the death sentence.

WHETHER THE COURT A QUO DESCENDED INTO THE ARENA.

The appellant sought to impugn the decision of the court a quo by alleging that it descended into the arena by asking questions. An examination of the record reveals that the questions asked by the court during examination in chief and cross examination were those intended to seek the clarification of issues on answers given by witnesses and the appellant. The court also asked questions after re-examination of the appellant intended to clear whatever had remained unclear to it. That is permissible provided the parties are given opportunities to put questions to such witnesses arising from the clarifications. In this case, the evidence before the court was common cause. It is difficult to imagine how the appellant can be said to have been prejudiced by the judge’s questions when he had already admitted that the evidence given by all state witnesses was true. In this case the appellant had in his defence outline made concessions which left the state’s evidence uncontested. There was therefore no arena of contestation that the court a quo could descend into. The court a quo was merely seeking clarification of the agreed evidence. This is a case where all that remained to be done was to analyse the common cause evidence to establish the appellant’s intention during the commission of the offence and thereafter impose an appropriate sentence.

WHETHER THE COURT A QUO ERRED BY RELYING ON ASSESSORS.

The appellant also sought to impugn the court a quo’s decision because it used the word “we” in considering the appropriate sentence, it being alleged it implies that the judge did not, on his own decide on the appropriate sentence. Section 10 (3) of the High Court Act        [Chapter 7:06] provides as follows:

“(3) At any criminal trial in the High Court the judge shall have the sole responsibility for fixing the sentence, but he may consult the assessors if he thinks fit.”

This means the judge decides on the appropriate sentence but may consult Assessors if he thinks it fit to do so. In this case the use of the word “we” gave the impression that the judge did not on his own fix the sentence imposed on the appellant. What has to be guarded against is the possibility of the judge being overruled by the Assessors on the fixing of sentence, as can happen in respect of the verdict, as it is his sole responsibility to determine the appropriate sentence though he may consult the Assessors. Judges should avoid using language which gives the impression that Assessors have taken an active part in assessing the appropriate sentence. In this case the use of the word “we” does not refer to the judge and the Assessors having decided on the appropriate sentence as a reading of the judge’s questions to the appellant and his judgment on sentence clearly establish that the judge was himself convinced that the appellant deserved the death sentence. There is no possibility that he would, but for the Assessor’s input have passed a sentence other than the death sentence. I am convinced that the word “we” was in the circumstances of this case used to refer to the judge’s taking into consideration the Assessors views obtained during consultations in support of his own decision to impose the death sentence.

DISPOSITION

The judge a quo did not descend into the arena but merely clarified issues.

The High Court Act allows the judge to consult assessors before he/she determines the appropriate sentence.

The decision of the court a quo can therefore not be impugned.

I am satisfied that the conviction of the appellant of murder with actual intent and the sentence of death are appropriate in the circumstances of this case.

The appeal against both conviction and sentence be and is hereby dismissed.

GUVAVA JA   				I agree

CHITAKUNYE AJA			I agree

Tanaka Law Chambers, appellant’s legal practitioners.

Prosecutor General’s Office, respondent’s legal practitioners.