Court name
Supreme Court of Zimbabwe
Case number
SC 125 of 2002
Crim. Appeal 182 of 2001

S v Matanga and Another (82/01) (SC 125 of 2002, Crim. Appeal 182 of 2001) [2003] ZWSC 125 (09 March 2003);

Law report citations
Media neutral citation
[2003] ZWSC 125













DISTRIBUTABLE
(106)


Judgment
No. SC 125/02


Crim.
Appeal No. 182/01








(1)
GODDEN MATANGA (2) GUIDESON KANYEMBA





v
THE STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, MALABA JA & GWAUNZA AJA


HARARE,
OCTOBER 22, 2002 & MARCH 10, 2003








P
Takavadiyi
,
for the first appellant





T
Chitapi
,
for the second appellant





S
Mushangwe
,
for the respondent





GWAUNZA
AJA: When the appeal papers in this matter were filed, there were
two appellants. The second appellant subsequently
died in prison,
before the appeal could be heard. This effectively left only one
appellant, the first appellant, whose appeal to
this Court in
relation to the murder charge was automatic following the death
penalty imposed on him for murder with actual intent.





The
facts of the matter are aptly summarised in the respondent’s heads
of argument and are repeated verbatim for convenience:





“The
first appellant, the second appellant and Charles Farai Mubika, who
has not prosecuted his appeal, are alleged to have plotted
together
to kill Heather, the first appellant’s employer, and to steal her
property. Thereafter, acting in concert, the first
appellant
carried out the killing by strangling her and hitting her head
against a rock. (He then piled logs on top of the body
and burnt it
to ashes). Thereafter he stole the deceased’s wallet, a cell
phone and a bunch of keys. On that night, after the
killing, the
first appellant met with the second appellant and arranged that the
second appellant would remove the deceased’s motor
vehicle the
following day. The second appellant was then given the deceased’s
cell phone to sell and $100.00 to use (for) transport.





The
second appellant proceeded to Mufakose where he met Charles F Mubika
and gave him the cell phone and he in turn sold the
cell phone for
$2 500.00. From that amount, Mubika received $500.00, whilst
the first and second appellants received $1 000.00
each. On
the following day, the second appellant, with the assistance of the
first appellant, removed the deceased’s motor vehicle
from her
premises and proceeded to Mufakose to see Mubika.





The
second appellant teamed up with Mubika and drove the vehicle in and
around Harare as well as to Kutama visiting friends and relatives.

The second appellant, acting in concert with Mubika, caused two
speakers to be removed from the motor vehicle and these were sold.

The two were arrested whilst the motor vehicle was still in their
possession.”





I
shall in this judgment refer to the first appellant as just “the
appellant”.





Upon
seeing the police, who had arrested his co-accused, the appellant
panicked and took rat poison in an attempt to kill himself,
but was
saved after being rushed to hospital. Before going to the hospital,
the appellant showed the police the place where he
had burnt the
deceased’s body to ashes. While in hospital, the appellant
recorded a warned and cautioned statement, which was
confirmed two
days later by a magistrate.






In the court
a
quo

the appellant pleaded not guilty to both the murder and theft
charges. In respect of the former, he tendered a plea of culpable
homicide. In respect of the theft charges, he pleaded not guilty to
the theft of the motor vehicle but guilty to the charges of
theft of
the wallet and the cell phone.






The court
a quo
found him guilty on the charge of theft of a motor vehicle and
sentenced him to eight years’ imprisonment with labour.





As
there were no eyewitnesses to the events that resulted in the
deceased’s death, the appellant was the only person who could
shed
light on the matter. He did not do well in that respect, as he gave
conflicting versions of what had happened between him
and the
deceased immediately before her death.





The
first version he gave is contained in the warned and cautioned
statement, whose contents the appellant now wishes to dissociate
himself from. He challenged the admissibility of the statement,
alleging that he had not made it freely and voluntarily. Be that
as
it may, the relevant portion reads as follows:





“I
went inside the yard and went to the compost and it was around 11 am.
I set up the fire to attract (the deceased) Heather
but she did not
come immediately. Probably she was occupied in the house at that
moment.





So
I continued doing normal garden duties and at around 11.45 hours
Jane came and they spent some time together playing music.
At
around 1300 hours Jane left. I went and put more fire in the
garden. At around 1600 hours Heather came down to
the garden,
running, using vulgar language while I put up the fire and she didn’t
like that.





I
took the kitchen knife from my right hand pocket. I tried to pierce
it through her stomach but it bent and she screamed. As
I was
panicking, I strangled her and slammed her on the rock and kept
strangling her. The last words she said were that “Why,
why,
why?” and then she died. Then I dragged the body onto the fire
and there were still some slight movements and I took the
spade and
hit her on the side of the head. The spade is by the swimming pool
room.





I
took some bushes and put (them) on the fire and when the bushes were
used up I took four tyres and eight logs and put (them) on
the fire,
burning the body. Then I went to the house, upstairs to her bedroom
and I collected the car keys, wallet, cell phone
(and) sunglasses and
came back to the fire. I took cash amounting to Z$350 and I threw
the wallet into the fire as well as a handbag
with cosmetic stuff.
I threw the coins by the swimming pool engine.





I
threw the shoes outside the durawall and the knife into the bush. I
left the fire burning and I took the cell phone with me and
the cash
and the car keys and the house keys.”





In
subsequent versions the appellant substantially embellished this
statement.





In
his defence outline, the appellant explained that when the deceased
came out, protesting at his lighting of the fire close to
her
flowers, she had given him a “hard clap” in the face, and
followed this up with a punch to his forehead with clenched fists,
and scratches administered all over his body. He had then held her
by the neck and pushed her down, causing her to fall on her
back and
hit a rock that was nearby. She had then gone quiet and had blood
oozing from her nose and mouth. He realised she was
dead after he
had failed to detect any heartbeat or pulse.





In
his examination-in-chief, the appellant repeated the part about the
abusive language and the slap in the face. He added:





“She
punched me and started scratching me. I held her by the collar of
her dress. She then increased, my lord, the way she was
scratching
me. She also reached for my private parts. I grabbed her hard by
the collar and hit her against a stone.”





In
re-examination by his counsel, the appellant said:





“My
lord, I did not intend killing her. We fought and she died
accidentally during the fight. My lord, she died when I hit her
against a stone or rock on the ground.”





During
indications to the police at the scene of the crime, the appellant
said:





“After
grabbing I pushed her towards this way of which she fell on this rock
and (I) started strangling her. As I was doing that
she was also
scratching me. She acted like she was dead. I pushed her on this
rock and slammed her on the rock.”





What
emerges consistently from these different versions is the fact that
there was an altercation between the two, and that the
deceased was
pushed by the appellant and fell on her back. The major
contradiction in the appellant’s differing versions is whether
the
deceased hit her head against the rock “accidentally” when she
fell, or whether the appellant deliberately hit her head against
the
rock in question, causing her death.






Based on
these contradictions, and other inconsistencies in his testimony, the
learned trial judge, in my view correctly, reached
the conclusion
that the appellant was not a credible witness. He also noted that
the appellant’s demeanour was poor, and that
some aspects of his
evidence were found to have been “patently manufactured” to
comply with the defences of his two co-accused.






The trial court also considered
the challenge, by the appellant, of the admissibility of his warned
and cautioned statement.






The appellant
did not deny signing the statement in question, nor giving the
assurance to the magistrate who confirmed it that such
statement had
been made freely and voluntarily. He, however, had an explanation
for these actions.






In
relation to the recording of the statement, the appellant averred
that such statement was in effect prepared by the police. He
accused the police of assaulting him as he was laid up in his
hospital bed, and refusing to accept the statement that he was giving
them concerning the manner in which the deceased had died. He also
accused them of having threatened to implicate his mother in
the
crime if he did not accept their version of events. In addition to
this threat, the appellant asserted he was coerced into
signing the
confession as formulated by the police, by the assurance from them
that he would be given a lighter sentence or even
be released.





As
for the confirmation of the statement, the appellant averred he had
not denied before the magistrate that it had been made freely
and
voluntarily because he feared further assaults from the police, and
believed he would get a lighter sentence and see his mother
released
from remand prison.






The trial
court was, however, not satisfied the appellant had successfully
discharged the burden which he bore, of proving that the
confirmed
warned and cautioned statement had not been made by him freely and
voluntarily. The learned trial judge’s reasons are
given as
follows:





“The
State called the policemen responsible for the taking of the
statement and indications from Godden. They denied the allegations
made against them. Godden was co-operative they said and gave his
own statement and indications freely.





There
was nothing in the way that the policemen gave their evidence or in
the content of their evidence which would or might lead
us to believe
that they were not telling the truth. They gave their evidence
well. They were not shaken in cross-examination.
The statement
which Godden had given is detailed and factual. It contains matter
that could not have been known to the police.
It is consistent
where the events it describes coincide with events relevant to this
case that are otherwise before us from evidence
or common cause.





It
is consistent with the indications that Godden admits he made and
which he says were made freely and voluntarily. …





… Godden’s
original defence outline stated only that the confirmed warned and
cautioned statement was not made freely and voluntarily.
There was
no suggestion that the police had made that statement and not Godden.
This claim only appears in Godden’s supplementary
defence outline
and evidence. So too (was) the claim that the police had
incorporated some manufactured indications of their own
within
Godden’s indications. …




For
the reasons already given, we reject as untrue the evidence given by
Godden on these points and accept that the warned and cautioned
statement and the record of the indications produced by the State as
Exhibit(s) 7 and 11 in this trial were made by Godden and
are a
true account concerning the death of Heather and are admissible
against him.”





I
find no fault with the reasoning and conclusions of the learned trial
judge. The warned and cautioned statement and the indications
were
properly found to be admissible against the appellant.





Even
though other evidence before the court, for instance the speed with
which the appellant, after burning the deceased’s body,
took the
deceased’s property and shared it with his co-accused, suggests
that the murder was premeditated, this is put almost beyond
doubt
when regard is had to the first part of the appellant’s warned and
cautioned statement. He alluded to him and his co-accused
having
planned to kill the deceased and to having, five days previously,
tried to put into operation a plan they had hatched to achieve
this
objective. The plan involved the burning, by the appellant, of a
fire close to the deceased’s flowers in the garden, a circumstance
that was certain to get her out of the house to investigate. This
plan, according to his warned and cautioned statement, was foiled,
unwittingly, by the deceased and the appellant’s mother. This did
not deter the appellant and his colleagues, as this passage
illustrates:





“On
Friday (the) 30
th
day of June 2000 in the afternoon we talked about the previous issue
which failed and Guideson shouted at me and his friends were
also
disappointed. Guideson said we should organise this mission and we
actually organised the mission. Guideson said if I kill
Heather and
burn her body they wouldn’t notice that and they would think that
Bob did something since they were separated.”





“Bob”
was the deceased’s estranged husband.





The
finding of the court
a
quo
, in the light of
all this evidence, that the appellant intentionally killed the
deceased cannot, in my view, be faulted. What has
to be considered,
given this finding, is whether the appellant proved a defence to his
actions.





In
his defence outline and evidence in the court
a quo,
the appellant raised two defences, that is, self-defence and
provocation. He asserted that he had pushed the deceased and
slammed
her head against a rock, firstly in self-defence against the
physical attack perpetrated on him by the deceased, through the slap
and punch to his face and scratches all over his body. Secondly, or
alternatively, the appellant justified his actions on the basis
that
he had been provoked by the deceased when she attacked him both
verbally and physically.





The
court
a quo
rejected the appellant’s other versions of the events immediately
before and during his attack on the deceased and accepted the
one in
his warned and cautioned statement. As correctly noted by the
learned trial judge, no mention was made in that statement
of the
deceased having physically attacked the appellant. All that is
mentioned was the shouting and use of vulgar words. The
appellant’s
two defences therefore have to be considered from the perspective
that the deceased only verbally attacked the appellant.





I
will consider self-defence first.





The
requirements for self-defence are now well established. As
correctly contended for the State, these are –





(i) that
there must be an unlawful attack;






(ii) that the attack must be upon
the accused or upon a third party;







(iii) that the attack must have
been commenced or was imminent;







(iv) that the action taken by the
accused must have been necessary to avert the attack; and







(v) that the means used to avert
the attack must be reasonable.
1





These
requirements envisage a physical attack.





In
casu
, the court
concluded that only a verbal attack had been launched by the deceased
against the appellant. To “defend” himself
against this attack,
the appellant perpetrated, on her person, a savage physical assault.
He hit the deceased’s head against
a rock while strangling her,
and thereafter struck her head with a spade after detecting slight
movements in her body. This attack
by the appellant, could, in my
view, not be said to have been an action necessary to avert the
verbal attack that the appellant alleged
was launched on him by the
deceased. Nor can it be said that the means that the appellant took
to avert the attack were reasonable.
The appellant clearly failed
to satisfy the requirements for a defence of self-defence, as set out
above.





In
the light of this, I am satisfied the learned trial judge properly
dismissed that defence.





This
leaves the other defence, that of provocation. It is, again,
correctly contended for the State that the appellant failed
to prove
this defence. Once the court
a quo
had decided that the death of the deceased was intentional, the next
stage of the inquiry would be whether the appellant had felt
so
provoked that he lost his self-control and, in that state, attacked
the deceased, and, if so, whether the provocation that he
had
received was sufficient to justify his having retaliated in that
manner.





The
learned trial judge was not persuaded that the verbal attack on the
appellant by the deceased was sufficient to justify him
losing
self-control in the manner that he did, so as to reduce the crime
from murder to culpable homicide.
2
I agree. The appellant might have felt angry at being shouted at,
but the retaliation that he took was, in my view, grossly
disproportionate
to both such anger and the provocation alleged.





That
defence was, again, properly dismissed.





The
learned trial judge found no other extenuating circumstances in the
case. He was satisfied that the nature of the attack by
the
appellant on the deceased and the determination which he showed in
continuing with the attack after his first failure were consistent
with a planned, deliberate and brutal attack on her, without
justification.




Against
the background of an intention to kill having been proved, the
defences proffered by the appellant having been dismissed,
and no
other extenuating circumstances having been found, the conviction of
the appellant of murder with actual intent cannot be
faulted. Nor
can the resultant death sentence.





It
should be noted in relation to the death sentence that counsel for
the appellant, Ms 
Takavadiyi,
entreated the court
a quo
to consider as mitigatory the fact that the appellant was a youthful
twenty years old at the time of the offence, and that he was
a first
offender.





The
killing of the deceased was callously planned and executed. The
appellant and his friends were not deterred from carrying
out their
mission by the failure of their first attempt to kill the deceased.
The killing itself was savage and brutal. The immediate
cremation
of the deceased was part of the deadly plan and was designed to hide
the crime. The crime was committed solely in order
for the
appellant and his friends to steal the deceased’s property. These
factors suggest a complete lack of respect for human
life. While
the appellant’s youth and the fact that he was a first offender may
have constituted mitigating circumstances in
other circumstances,
in
casu
these were, in my
view, totally eclipsed by the aggravating circumstances. The
sentence passed by the court
a quo
cannot be faulted.





The
appellant also appeals against both the conviction and sentence in
relation to the theft of the deceased’s motor vehicle.





The
appellant does not deny collecting the deceased’s car keys from the
house and handing them over to the late Guideson Kanyemba,
the
second appellant. According to his warned and cautioned statement,
the appellant then helped the second appellant push the
car to the
gate and drive off in it. The second appellant, according to the
statement, was going to sell the car, bring back the
money and share
it with the appellant. That the intention of the appellant was to
steal the car and permanently deprive (by then
the estate of) the
deceased of it, is further supported by the fact that the second
appellant never brought the car back but instead,
together with the
other accused, Farai Mubika, drove it around for several days
and sold the radio speakers before they were
arrested. Having thus
facilitated the removal of the motor vehicle from the deceased’s
house, the appellant cannot now dissociate
himself from all that
happened to it thereafter. The removal and sale of the speakers in
particular was not consistent with an
intention to return the vehicle
to its owner.





The
learned trial judge correctly noted that theft from employers
generally and theft of motor vehicles in particular were both
prevalent
and serious crimes in Zimbabwe. The conviction of the
appellant for theft, and the sentence of eight years’ imprisonment
with
labour, were, in my view, appropriate under the circumstances.
That appeal, too, must fail.





In
the result, the appeal against conviction and sentence in relation to
the charges of murder and theft is dismissed.












CHIDYAUSIKU
CJ: I agree.














MALABA
JA: I agree.














Pro
deo



1
S
v Ntuli

1975 (1) SA 42;
S
v Motleni

1976 (2) SA 403;
S
v Golaith

1972 (3) SA 1.




2
R
v Tanganyika

1958 R & N 228;
R
v Bureke

1959 (2) R & N 353.