S v Chifamba (568 of 2024) [2024] ZWHHC 568 (29 November 2024)

1 HH568-24 HCHCR 3716/24 THE STATE versus JOSEPH CHIFAMBA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 11 NOVEMBER & 29 NOVEMBER 2024 Criminal Trial-Murder Assessors: Dr Mushonga Mr Gwatiringa R S Mushonga, for the State P Kanokanga, for the accused MUNGWARI J: On 11 March 2024, at around 2100 hours in Dengwa village, Chief Mukota in Mudzi, 35-year-old Tafadzwa Chimbangu (hereinafter referred to as "the deceased"), left his residence armed with an unidentified object, en route to the home of 74- year-old Joseph Chifamba (hereinafter referred to as "the accused"). Upon arrival, the deceased forcibly opened the bedroom door and pounced on the accused, who was sleeping on a reed mat. Startled, the accused attempted to rise but was immediately met with barrage of assaults from the deceased. He angrily accused the accused of having extramarital sexual relations with his aunt. When the deceased momentarily allowed the accused to dress up, the accused seized the fleeting moment and grabbed an axe from the corner of his bedroom. He struck the deceased multiple times on the head until he collapsed. [1] When he was convinced that he had incapacitated the intruder, the accused went to seek assistance from a neighbour, Patrick Chimbangu. Together, they approached the village head, Langton Chimbangu, and informed him of the incident. The village head also summoned Phillimon Chimbangu, to accompany them back to the accused's residence to inspect the scene. [2] Using a flashlight in the accused's bedroom, they discovered the deceased, barely alive, lying face down in a pool of blood. He exhibited severe head wounds and was bleeding profusely. The deceased was transported to Kotwa Hospital but tragically succumbed to his injuries two days later on 13 March 2024. A report which ultimately HH568-24 HCHCR 3716/24 resulted in the arrest of the accused was made to the police. Subsequent investigations led to the recovery of the murder weapon-an axe-, which was taken as evidence. Meanwhile, a post-mortem examination was conducted by Dr. Robert Guillen. His conclusion was that death was due to brain laceration, subarachnoid haemorrhage, and a skull fracture resulting from the axe assault. [3] Based on these circumstances, the accused was arraigned before the High Court on a charge of murder as defined in Section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The state alleged that the accused, with intent to kill, or realizing that there was a real risk or possibility that death could occur, but continuing to engage in that conduct despite the risk, struck the deceased on the head with an axe, inflicting mortal injuries. [4] The accused pleaded not guilty to the charge but admitted to all the factual allegations stated above. They therefore all became common cause. His only point of contention was that, in striking the deceased with an axe, he acted in self-defence. According to the accused, the deceased had attacked him, in his bedroom. He said the deceased had assaulted him with an unknown object. Realizing that he had no means of escaping from this unlawful attack, he seized the nearest weapon available—an axe. The deceased attempted to wrestle the axe from him, but he managed to strike him with it and continued to do so until the deceased collapsed in his sleeping area. Once he realized that he might have seriously injured the deceased, he immediately sought help from neighbours, including the village head, whom he invited to the scene. State case [5] The prosecution opened its case by applying to produce the autopsy report compiled by Doctor Robert Guillen a pathologist stationed at Parirenyatwa Hospital. The doctor examined the remains of the deceased on 26 March 2024. Significantly he noted seven surface wounds and injuries on the head, face, the bridge of the nose and on the right shoulder. Further an internal examination on the head, skull and brain revealed: “hemorrhagic infiltrate in the left frontal, left temporal and bilateral parietal regions, fracture of the left parietal bone; Laceration of the meninges and left parietal lobe; bilateral hemispheric subarachnoid hemorrhage; cerebral hemorrhage and cerebral edema” In the end Dr Guillen concluded that the cause of death was: a. Brain laceration and subarachnoid hemorrhage b. Skull vault fracture c. Axe assault HH568-24 HCHCR 3716/24 With the defence's consent, the post-mortem report was duly admitted into evidence as Exhibit 1. The cause of the deceased’s death was uncontested. He died from injuries sustained during the frenzied acts of violence inflicted upon him. [6] Exhibit 2 is the accused’s confirmed, warned, and cautioned statement. In that statement, the accused reiterated the same narrative as outlined in his defence. He stated that: “I admit to the allegations. What happened is that, the deceased came into my house in the night and banged on my house door in which I was sleeping and I got frightened. The deceased alleged that I wanted to have sexual intercourse with his aunt and he started to assault me with an object which I did not recognize. I got up from where I was sleeping and took an axe which was at the corner of my house and started attacking him which caused him to get injured on the head.” (Sic) [7] Exhibit 3 is the murder weapon. The court observed that the axe features a handmade hardwood handle measuring 66 cm in length, with a compact steel blade measuring 15.5 cm in length and is 5.5 cm wide. The blade has a very sharp edge and weighs approximately 0.52 kg. The axe was submitted without any contestation. Although relatively small, the weapon appears menacing. [8] Additionally, the testimonies of Langton Chimbanga, Philimon Chimbanga, Farai Kwerangwe, James Barwa (the investigating officer in this case), and Dr. Guillen were formally admitted in accordance with s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CPEA), as outlined in the state’s summary of evidence. The witnesses’ evidence did not present any significant information beyond the established facts. The state also provided viva voce evidence from Patrick Chimbangu. The accused, on the other hand, served as the sole witness for the defence. Patrick Chimbangu (Patrick) [9] Patrick, a 78-year-old man, is a neighbour and friend of the accused. He has known the accused all his life, because they were both born and raised in the same village. He claimed that he enjoyed cordial relations with the accused and still does. He knew the deceased as his sister's son and was therefore, his nephew. [10] His testimony was that on the fateful night, at around 2200 hours, the accused visited his residence and asked him to come outside. Once outside, the accused disclosed that he had struck an intruder and did not know the intruder's identity. He showed Patrick the axe he had used in the incident. Together, they proceeded to the village head's HH568-24 HCHCR 3716/24 residence to report the assault on the intruder. After that, they returned to the accused’s home with two other men. In the accused’s bedroom, they found the intruder lying on a blood-soaked reed mat, injured and barely alive. According to Patrick the intruder had sustained five cuts to the head and another on the thigh. Significantly, Patrick realized that the deceased was his nephew, Tafadzwa Chimbangu. Once they identified the intruder, the accused expressed his intention to report the incident to the police. [11] The witness refused to comment on whether or not the deceased had attacked the accused, stating that he was not present when that happened. Patrick’s evidence corroborated that of the other witnesses’ formally admitted evidence. Notably, it highlighted that from the very beginning, the accused had told everyone he had notified of the incident that he had not managed to identify the intruder. Defence case -Joseph Chifamba(Joseph) [12] The accused, who the court noted is a frail seventy-four-year old man struggled to walk unaided