S v Chakamufunah (CRB 51 of 2014; HH 277 of 2016) [2016] ZWHHC 277 (10 May 2016)

1 HH 277/16 CRB 51/14 THE STATE versus MOSLINE CHAKAMUFUNAH HIGH COURT OF ZIMBABWE MAWDZE J HARARE, 28 January 2016 & 10 May 2016 Assessors: 1. Mr Gonzo 2. Mr Gweme Criminal Trial Ms N Mazvimbakupa, for the State Mrs G Tavenhave, for the accused MAWADZE J: The accused is charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. The charge is that on a date unknown to the prosecutor but during the month of July 2005 at a swamp area near Bindura Showgrounds the accused with intent to kill murdered ANESU ASHLEY CHAKAMUFUNAH by administering rat poison and strangled him causing injuries from which he died. The deceased was accused’s one year old baby boy. In December 2004 the accused together with the deceased started to stay with accused’s boyfriend one CHAKANETSA JEMWA at No. B9 Rugare Street in Tsungubvi Township in Greendale. The state alleges that in a bid to save her relationship with the boyfriend the accused took the deceased to a swamp area near Bindura Showgrounds in July 2005 where she administered rat poison and strangled the deceased after which she dumped the body in the swampy area HH 277/16 CRB 51/14 among tall grass and gum trees near a sewage pipe. The accused then returned to her boyfriend without the baby. It is alleged that the accused’s boyfriend together with CHARLES BHANYA and ANASTANCIA MABHEKANI questioned the accused about the whereabouts of the child and accused said she had left the child with her mother in law in Bindura. The deceased was discovered by one JAMES SONGA who reported to the police. The state alleges that the post mortem report shows the cause of death as broken larynx and asphyxia. The accused in her defence outline said she grew up in an orphanage and that she does not know her parents or the identity of any of her relatives. The accused said she was then impregnated by a person she does not know and that this forced her to leave the orphanage and latter gave birth to the deceased. Accused said she then started to live with a boyfriend but the boyfriend threatened to dump her because of the child she had. The accused said she committed this offence in order to salvage her relationship. It is accused’s defence that she suffered from diminished responsibility arising from her upbringing. During the trial three exhibits were produced by consent. These are; Exhibit 1 A post mortem report done on 20 July 2005 which shows cause of death as asphyxia. Exhibit 2 Accused’s confirmed warned and cautioned statement. In that statement accused said she killed the deceased because her live in boyfriend since January 2005 had said he only loved her and not the child. Accused said this was in June 2005. She said the boyfriend on three different occasions gave her money to take the child to the father of the child but she failed. On the fourth occasion she said when she was given the money she then administered rat poison and dumped the child at about 1800hours in a bush and returned to the boyfriend where she lied that she had left the child with the grandmother of the child. The accused gave this statement on 13 August 2005. As per exh 3 (a) and 3 (b) the accused on 16 November 2015 was examined by two doctors Dr Mabwazara and Dr Ncube to ascertain her mental state. The accused was found to be normal. All the evidence of the state witnesses except that of accused’s then boyfriend CHAKANETSA JEMWA was admitted in terms of s 314 of the Criminal Procedure and HH 277/16 CRB 51/14 Evidence Act [Chapter 9:07]. It means that that evidence is not in issue. For clarity purposes we however summarise the uncontroverted evidence as follows: DR NORBERT CHITOWA The evidence of Dr Norbert Chitowa is that external force was used on the throat of the deceased and that this caused asphyxia. It is clear therefore that the deceased was strangled. CHARLES BHANYA The evidence of Charles Bhanya is similar to that of the accused’s live in boyfriend one CHAKANETSA JEMWA who gave viva voce evidence. ANASTANCIA MABHEKANI She is a sister to accused’s live in boyfriend CHAKANETSA JEMWA and also to one CHARLES BHANYA. Her evidence is similar to that of her brothers. JAMES SONGA James Songa is the one who discovered the deceased’s body on 17 July 2005 and reported to the police. JERRFANOS HUNDURE He is the police detail who attended the scene of crime where the deceased’s body was discovered. He found the body without a shirt and caused the post mortem to be done. MARSHAL THANDIWE MUYAMBI She is a member of the police special constabulary and was known to both accused and accused’s child the deceased. As a result she was able to identify deceased’s body as that of accused’s child and she caused the police to look for the accused. Her evidence is that accused was only located a week after the discovery of deceased’s body and that upon being questioned accused initially lied that she had left the child at SOS Village in Bindura. The accused was then arrested. HH 277/16 CRB 51/14 PETER SITHOLE He is a nurse at Bindura General Hospital and certified deceased’s body dead. MAFION MUCHENA He is a member of ZRP CID who recorded accused’s warned and cautioned statement on 13 August 2005 and had it confirmed at court on 16 August 2006. ENERGY MUNDANDISHE He is a member of ZRP CID and witnessed the recording of accused’s confirmed warned and cautioned statement. TONDERAI MAGAHA He is a member of ZRP CID to whom accused made indications at the scene of crime on 12 August 2005. DR MASVIKOVERE This is the doctor who compiled the post mortem report as per exh 1 and observed the broken larynx. We now turn to the viva voce evidence. CHAKANETSA JEMWA He testified that he fell in love with accused who had her own child. The accused told him that the father of the child had gone to the United Kingdom (UK) and had left the accused and the child in the custody of his mother being accused’s mother in law. He said accused then said the mother in law later chased the accused and the child away which caused accused to stay as a lodger in an area called ‘O’ section. Chakanetsa Jemwa (Jemwa) said the accused told him that she had grown up in an orphanage until she fell pregnant. Jemwa said he was staying at no B 9 Rugare Street Tsungubvi in Glendale and that since he fell in love with the accused he invited the accused to stay with him as husband and wife in December 2004. He said he accepted the accused and her child and had absolutely no issues with the child whom he supported. HH 277/16 CRB 51/14 Jemwa said the accused would occasionally leave home with the child saying she was going to visit her mother in law the grandmother of the child to show her the child and that he had no problems with that. Upon her return he said the accused would bring soap, porridge and clothes which she alleged she would have been given by the grandmother of the child. He himself had however not seen or talked to this grandmother. Sometime in July 2005 he said the accused said the father of the child had come from UK and wanted to see the child and he allowed her to go with the child. He said the accused only returned at 8pm without the child saying she had left the child with the grandmother. Jemwa said this was improper as the child was still breast feeding hence he together with his brother Charles Bhanya and his sister Anastancia Mabhekami told the accused to go back and bring the child. The accused promised to bring back the child the following day. The next day Jemwa said the accused left ostensibly to collect the child and he left for work. Jemwa said upon his return from work he found a note on their bed written by the accused in which the accused said she was no longer coming back to stay with Jemwa because Jemwa’s relatives did not want her to stay with Jemwa. He said this surprised him and the accused never returned. Jemwa said after some weeks he bumped into the accused at OK supermarket in Bindura and the accused did not have the child. H