HIGH COURT OF ZIMBABWE
HARARE, 24 October 2016
Assessors 1. Mr Raja
2. Mr Chagonda
M. Musarurwa, for the State
Mrs E. Ngorima with Mrs M. Mandingwa, for the accused
HUNGWE J: The accused pleaded not guilty to a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23], (“the Criminal Law Code”).
The following facts in this matter are common cause.
- The deceased Mudhumiso, Muyambo, 86, was the accused’s neighbour.
- Between the deceased and accused’s families was hovering allegations of the use of witchcraft by the deceased against the accused’s family.
- The accusations had spilled into the Headman’s court where it was pending resolution.
- It is not in dispute that around 7 pm on 20 February 2016 the accused approached the deceased’s residence. He found the deceased sitting outside his bedroom.
- There were three of his minor children present. The deceased carried a stick. He challenged the deceased over the allegations of witchcraft.
- The accused struck deceased with the stick, once on the head and twice on his back. It broke up.
- The deceased tried to run away but was pulled back by accused and he fell down. Upon his fall to the ground the accused kicked him indiscriminately all over his body.
- The accused left the deceased where he fell bleeding from his mouth and ear.
- When the accused came back the following morning he found the deceased still sprawled on the sport where he had fallen and whereat the accused had kicked him indiscriminately.
- He was ferried to hospital where he died after about five weeks.
On these facts, the State contends that the accused must be found guilty of murder.
The defence on the other hand contends that there is no proof beyond reasonable doubt that the accused had the necessary intention to kill the deceased, whether actual or legal.
The accused’s defence was that when he approached the deceased his objective was to persuade him to attend at the Headman’s court the next day in order to bring closure to the pending matter. When the deceased indicated that as a born again Christian he would not be able to attend. This refusal to attend court extremely angered him and, in fit of rage, he struck the deceased with a stick he usually carried around. When the deceased tried to run away from him, he tripped him causing him to fall. In order to punish him for his recalcitrance, he had kicked him randomly for good measure. After a few kicks, he left the scene and went home. The following morning he was persuaded by his mother to go back and check on the old man. He found him still lying on the same sport he had fallen and was bleeding. He was alive but could not talk. Eventually, the deceased was ferried to a nearby clinic.
The accused does not deny that he assaulted the deceased using a stick and booted feet. The details of how the assault proceeded blow by blow were given by an eye witness, the youthful Kenias Muyambo.
We are satisfied that the 13-year-old was a credible, eloquent and truthful witness. His version of events is corroborated, in its material respects, by the accused himself. As an example, the accused admits that he used a stick to assault, the deceased first before he kicked him indiscriminately as he lay where the accused had felled him. It is the nature or quality of the stick on which the accused differs with the witness. He maintained that his stick had no thorns. Whilst the witness said the accused was not in the habit of carrying a stick around the accused insisted that he did.
We do not attach undue weight to the minor differences in the quality of the stick. The fact is the accused used that stick on the old man in the way described by the youthful witness. It broke up into pieces, suggesting some amount of force. He then resorted to tripping the old man who was in flight causing him to fall headlong. Thereafter he kicked the old man around the back, the head and the face indiscriminately.
The Post Mortem Examination Report exhibit 3, corroborated the evidence given by the young Kenias Muyambo. From the examination by the doctor it is evident that the deceased sustained subdural haematoma which eventually led to his subsequent death. The cause of death were the injuries sustained at the hands of the accused inflicted in the manner described by the deceased’s son.
Ms Mandingwa, for the accused, contended that the State failed to prove that when he assaulted the deceased, the accused intended to cause his death.
We understood Ms Mandingwa to argue that because the accused did not have as his aim and object the killing of the deceased when he acted out of rage and provocation he cannot therefore be found guilty of murder as he lacked the requisite alert. The accused only failed to measure to the standard of the hypothetical reasonable man. She arrives at this conclusion on the basis that normally a stick of the size in issue or a kick or kicks to the body would not generally result in death.
But this argument appears to ignore the basic tenets of our law as codified. In this jurisdiction it has long been accepted that intention exists in two forms; that is actual or direct intention on the one hand. This is where the accused has as his aim and object and desire the bringing about of the unlawful circumstance such as the death of the deceased. An example is where an accused who is a jilted lover takes out a gun and shoots the former lover killing her.
On the other hand the law recognises that there will be situations when, although the accused did not have as his aim and object the killing of the deceased but embarked on a course of action or has triggered a course of events which to his knowledge could put the life of the deceased at risk and; despite that knowledge, persists in the setting off of those events. This is the type of intention which used to be referred as to as constructive intent or dolus eventualis.
In the Criminal Law (Codification & Reform) Act [Chapter 9:23] these two concepts are captured separately by the provision for the test for intention separately in Section 13 and specifically setting out old concept of constructive intent under the rubric of realisation of the real risk or probability. (Section 15).
Section 15 provides that where realisation of a real risk or probability is an element, of any crime, the test is subjective and consists of the following two components: –
- a component of awareness, that is whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote possibility that:-
- his or conduct might give rise to the relevant consequence; or
- the relevant fact or circumstance existed when he or she engaged in the conduct; and
- a component of recklessness, that is whether, despite realising the risk or possibility referred to in para (a) the person where conduct is in issue continued to engage in that conduct.
It will be seen that in both cases the test for intention is subjective.
Section 47(1) of the Criminal Law Code specifically fits this category of crimes.
The question to ask therefore is whether, if the accused did not intend to kill the deceased, as he says, he realised that there was a real risk or possibility that his conduct might result in the death of the deceased and whether, despite that realisation, he continued to engage in that conduct.
The facts show that the deceased was an 86 year old man. The accused was 41 years old then, (less than half his age). He struck the deceased and asked him indiscriminately all over the body including the back the head and the face. In our view the answer to the question is that the accused realised that there was a real risk or possibility of death occurring from kicking an 86-year old man to his head several times but notwithstanding that realisation he persisted in his conduct. He could not care. This is why he left him for dead at the scene. He found him still there the following morning. He did not care whether the risk was fulfilled in death. He took this risk into the bargain when he assaulted the deceased.
In our view he cannot escape conviction. He is found guilty of murder as defined in s 47(1) (b) of the Criminal Law Code.
In assessing your sentence I take into account submission in mitigation made by counsel on your behalf. What I find particularly mitigatory is the fact that you have made amends with the deceased’s family by meeting the funeral expenses as demanded by that family. It shows that you ae contrite. You have paid monetary compensation in part-payment of the demands by that family. Clearly, your belief in witchcraft played a major role in the commission of this crime.
What is aggravating in this case is that there was needless loss of human life. The assault on this old man was unprovoked. Besides, he was too old to defend himself. It goes without saying that society abhors this kind of gratuitous violence where individuals take the law into their own hands over perceived wrongs committed by fellow citizens. The matter was before the traditional courts. You have been there several times and therefore you knew how to get the deceased to court. There was absolutely no justification on your part in resorting to the type of brutality that you subjected the old man leading to his death. Such behaviour cheapens and degrades human life.
In all the circumstances of this case the following sentence is justified:
20 years imprisonment
National Prosecuting Authority, legal practitioners for the State’s State
Mhungu & Associates, legal practitioners for the accused