S v Chigayi & Ors (CRB 8 of 2017; HH 248 of 2017) [2017] ZWHHC 248 (1 March 2017)

1 HH 248 - 17 CRB 08/17 THE STATE versus JOHN CHIGAYI and JOEL CHIGAYI and MATHIAS CHIGAYI and BLESSING CHIGAYI HIGH COURT OF ZIMBABWE HUNGWE J MUTARE, 22-24 February, 2017 & 1 March 2017 Assessors: 1. Mr Magorokosho 2. Mr Chagonda Criminal Trial W Musarurwa, for the State S Mupindu, for the 1st accused J Chikamhi, for the 2nd accused S Dhlomo, for the 3rd accused B Mubata, for the 4th accused HUNGWE J: The four accused pleaded not guilty to the murder of their own father. The events leading to the charge of murder can be set out as follows. There were trials and tribulations in the Chigayi family. That family in issue being the nuclear family headed by the now late Sam Chigayi. HH 248 - 17 CRB 08/17 He had three wives. Each wife had a number of children. Apparently there were deaths in each of the three households which led the children, specifically the four accused sons, to seek divine intervention as to the source of the perceived misfortunes in each home. This mission was spearheaded by the four accused. In the early hours of 11 December 2015, the four sons asked their father to accompany them to a faith healer. It is not in dispute that the faith healer, upon being consulted, pointed to the deceased, their father as the source of their tribulations as a family. In short he was a wizard. Unfortunately, as is usual in these matters, each of these the four was satisfied that this was the truth. Upon returning home the four accused grabbed the deceased and took him inside his bedroom and demanded that he produced his charms. His response did not meet the expectations of the four accused. It was decided and agreed that the father be subjected to a form of torture to elicit from him the expected co-operation. The form of torture settled upon involved the use of molten plastic being administered on the bare skin of the victim. In order to achieve this they bound their father, by both his hands and legs. A fire was then lit next to the bedroom so that the burning plastic does not go cold before its molten form is administered on the father privately inside the bedroom. They found a brown plastic container usually used to contain opaque beer going by the nomenclature “Scud” was then put to the fire. As it burned, it melted. A stick was used to convey the molten plastic through the window into the bedroom, where accused one and accused two ensured that the process produced the desired results. Accused four stoked up the fire to ensure that it would burn the plastic to melting point. Accused three carted the wooden rod with dropping hot molten plastic from the fire into the bedroom. This process led to the deceased being burnt all over including his face, chest, back and lower limbs. At some point the deceased offered to show the charms. He produced a bow, three arrows and a white bottle. It was then decided to burn these. According to the accused’s story, the deceased suggested that these be bunt rather than be taken to the faith healer as directed by him. They took their helpless father to a disused housing structure. Police say that all the accused indicated that this was the place where they tied their father to an ox-drawn harrow HH 248 - 17 CRB 08/17 using a metal chain. A fire to burn the charms was lit up. The harrow upon which he was tied then put over the fire. They burned the charms underneath the ox-drawn harrow as he got roasted on the back. The four deny that they tied their father to the ox-drawn harrow and lit a fire under him. They however agree that the charms consisting of the three arrows, a bow and a white bottle were burnt inside this housing structure at the deceased’s behest. After this ritual, they released him. They say he went back to rest inside his bedroom whilst they dispersed to different destinations. His wives returned and found him helplessly prostrate on his bed. He related his ordeal to his senior wife. In that report the deceased implicated all the four accused. The following day he died at home. This much is not disputed. The accused chose to adopt as evidence their defence outlines. They gave evidence in court but on that score they all chose to adopt what the eldest among them told the court in his evidence-in-chief. It is critical first to consider the evidence adduced by the State in proof of the charge. The evidence of certain witnesses was admitted on the record in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The witnesses include all the police officers, from the arresting detail to the officers who recorded the accused’s warned and cautioned statements. An array of weapons from a stick, remains of the type of plastic that was used, to an ox-drawn harrow and a cow-chain were also produced as exhibits by consent. The remains of the burnt “charms” which “harms” were “produced” during the torture of the deceased, in the form of three arrow-heads, were produced by consent. Two witnesses gave oral evidence for the State. The first was Janet Chigayi, who is the senior wife to the deceased and accused one’s mother. The second one was Doctor Nyafesa who compiled the post mortem report after a visual examination of the deceased. Janet Chigayi confirmed that on the fateful day the four accused and their father had gone to consult a faith healer. Upon their return, she and the other junior wives left for a rally leaving the father and sons, who had just returned, seated in the verandah. Upon their return in the afternoon they noticed from a distance the four accused walking up and down the yard. From premonition, she suspected that something was not well at their HH 248 - 17 CRB 08/17 homestead. By the time they got into the premises, all the four accused had left. She found her husband lying on the bed. He had been badly burnt all over the body. Upon enquiring she learnt that all the four accused had tortured him by burning him with molten plastic. When the accused came back they all took responsibility for the state of their father and assured her that they will take care of him. They warned their mothers against rendering assistance to their father pointing out that they were strangers in the crime. Only the sons will deal with the situation. This explains why the deceased died the following day without anyone rendering assistance. Doctor Nyafesa’s evidence was that when he examined the deceased’s body, decomposition had set in. In spite of all the decomposition he was able, by usual examination, to tell that the deceased had been subjected to severe burns all over the body. He compiled the post mortem report. The reason why he was called was that there was a discrepancy in the date of deposition and the date of commission of the report in affidavit form. His explanation was that the Commissioner of Oaths omitted to change the date from the previous day. The State also put into evidence the confirmed cautioned and warned statements given by each accused four days after the event. The events were still fresh in their memories. In the statements each admitted what the state alleges occurred. They made indications and gave statements accompanying their indications which confirmed that they knew exactly what happened. The odd feature on these statements is that only accused one mentions how exh 9, the cow-chain was used to hold the deceased down to the fire as they roasted him in the roofless structure. He does not mention the ox-drawn harrow. None of the other three accused mention the cow-chain or ox-drawn harrow in their statements. This omission appears to have been cured by reference to it in the indication in exh 7. All in all therefore the four accused admitted to their mothers, to their neighbour and to the police that they killed the deceased. The cold facts established in this case are that the four accused, acting on some belief in their father’s involvement, embarked upon an assault on their father using burning or molten plastic. The first and second accused held their victim cap