S v Chisahwira (CRB 180 of 2014) [2015] ZWHHC 149 (12 February 2015)

1 HH 149-15 CRB 180/14 THE STATE versus CLEVER CHISAHWIRA HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 9, 10 & 13 February 2015 Assessors: 1. Mr T Gweme 2. Mr Mhandu Criminal Trial Ms F Muronda, for the State T Chaguduma, for the Accused MAWADZE J: The accused pleaded not guilty to the charge of contravening s 47 (1) of the Criminal Law (Codification and Reform) At [Chapter 9:23] which relates to murder. The charge is that on 12 October 2001 at Katira homestead, Mashambanhaka Village, Chief Nyajina in Uzumba communal lands, the accused with intent to kill or realising there was a real risk or possibility that his conduct may cause death, murdered one SINOIA KATEMA by assaulting him all over the body using open hands, booted feet and wooden sticks causing injuries resulting in his death. The now deceased was the biological father of the accused. He was about 60 years old. The now deceased was estranged from his wife Maruda Chisahwira who is also accused’s mother. The now deceased stayed alone at the matrimonial home and his wife was staying nearby at the homestead of one of their sons. The accused had his own homestead. As per Annexture A the summary of facts it is alleged that accused, on 12 October 2001 visited the now deceased at his homestead at about 2300 hours. The accused started to accuse the now deceased that he was allowing some evil spirits to affect the family. A quarrel ensued. Accused is alleged to have proceeded to assault the now deceased with open hands, booted feet and sticks throughout the night until the early hours of 13 October 2001 when the now deceased was unconscious. It is alleged that the assault took place in the presence of the now deceased’s wife Maruda Chisahwira who is also accused’s mother. It is further alleged that Maruda Chisahiwra was unable to assist the now deceased and that no other person came HH 149-15 CRB 180/14 to restrain the accused. The accused was arrested in the morning on 13 October 2001. The now deceased died in hospital in Harare 8 days later on 22 October 2001 from the injuries inflicted during the assault. In his defence outline Annexture B the accused said on the day in question he and the now deceased visited a faith healer to consult and get help on family, that affected the accused after which they returned home, each going his separate way. The accused said he proceeded to church and at about 0200 hours the now deceased summoned him to his homestead. On arrival accused said he noticed the now deceased was drunk and accused decided to engage him in the presence of his wife and accused’s mother Maruda Chisahwira whom he fetched from his brother’s homestead. The accused said while inside the now deceased’s hut in the presence of Maruda Chisahwara a quarrel ensued. The accused said the now deceased picked an axe intending to attack the accused but accused managed to wrestle it away and threw it out of the kitchen hut. Unperturbed, the accused said the now deceased took a spear with the intention of attacking the accused but accused managed to dispossess the now deceased of the spear which spear accused broke into two and threw the blade out of the kitchen hut. Accused said the now deceased went out of the kitchen hut to pick the axe and spear blade and accused followed him. The accused said as the now deceased tried to pick up the axe on the ground the accused hit the now deceased on his back with a spear handle which had remained in accused’s hands. The accused said he proceeded to kick the now deceased with booted feet twice, that is once on the ribs and once on the chest. The now deceased could not pick the axe and remarked that accused had hurt him. The accused said the now deceased appeared unconscious but woke up unaided telling accused he was feeling cold. The accused said he made a fire to warm the now deceased and spent the whole night with him. The next morning accused said his mother was unable to cook porridge for the now deceased as there was no mealie meal and he decided to go with his mother to a certain home in the village to get some maize. The accused said on his way back member of the neighbourhood watch committee then arrested him. The accused stated that he had no intention to kill the now deceased and that he did not realize that his actions would result in deceased’s death. The accused pointed out that he had no premeditated motion of assaulting, let alone killing the now deceased. The accused said he acted in self-defence when the now deceased who was drunk decided to attack him unprovoked with an axe and spear. The accused said when he kicked the now deceased once on the chest and twice on the ribs he merely wanted to prevent him from picking up the axe HH 149-15 CRB 180/14 hence acted at the spur of the moment and in self-defence. The accused denied that he assaulted the now deceased throughout the night alleging that the injuries stated in the post mortem report are consistent with accused’s version of events. It is clear that this offence occurred on 12 October 2001 and accused was arrested the next day 13 October 2001 but the trial only resumed on 9 February 2015, after a period of 13 years. What emerged from accused’s explanation in relation to this delay which was uncontroverted by the state is that after his arrest on 13 October 2001 accused spent 1 year and 7 months in custody on remand after which he was granted bail pending trial. The accused was then indicted in 2004 but the trial did not take off. Accused remained in custody for 3 years and was released on bail in 2007. The accused was only re-indicted 5 years later on 23 September 2014 after which the trial commenced on 9 February 2015. In brief, this is the history of the matter. In support of this case the state relied on the evidence of Maruda Chisahwira who is the now deceased’s wife and accused’s mother, Phillimon Makuku, a neighbour to the now deceased and the investigating officer Assistant Inspector Andrew Makovera. Exhibit 1 the post mortem report and exh 2 accused’s confirmed warned and cautioned statement were produced by consent. The cause of the now deceased’s death is not in issue. As per exh 1 the post mortem report deceased died from chest injuries which included bruises and rib cage fractures and lungs contusion all arising from the assault. The now deceased’s remains were examined at Harare Central Hospital on 29 October 2001 by a pathologist Dr S A Mapunda. The following observations and findings were made: (i) (ii) the now deceased was 60 years old and ill nourished surface wounds or injuries noted was the deformed rib cage with the crepitation of broken ribs bilaterally involving lower cage of the body i.e sound made by broken ribs. (iii) cynorosis of the body – which relates a condition in which the skin and mucous membrane take a bluish colour due to lack of enough oxygen in the blood. (iv) Oedema or congestion of the brain – swelling or excess fluids. (v) Injury on the right lung – there was bilateral fracture of the 7th, 8th and 9th ribs with contusion (bruises) of the lung which was oedematous, achymotic and congested. HH 149-15 CRB 180/14 (vi) The cause of death is due to be chest injuries, i.e bruises, and rib fractures and lungs contusion. It is not in dispute that the now deceased died from the injuries inflicted by the accused during the assault. There is therefore a nexus or causal link between the assault perpetrated by the accused and the now deceased’s death. It can be inferred from the nature of the injuries inflicted that the assault was not only very serious but clearly fatal. A lot of force was used as the now deceased’s 3 ribs were broken and lungs damaged. The now deceased who had hitherto been in fairly good health could not recover from the assault. It is therefore clearly misplaced for Mr Chagudura for the accused to submit the assault was a minor one and that no serious injuries were inflicted. This flies in the face of the clear findings outlined in the post mortem