S v Damota (CRB 3 of 2020; HH 709 of 2020) [2020] ZWHHC 709 (28 October 2020)

1 HH 709-20 CRB 3/20 THE STATE versus NICHOLAS DAMOTA HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 24 & 25 September, 26, 27 & 28 October 2020 Assessors: Mrs Chitsiga Mr Kunaka Criminal Trial B. Murevanhema, for the state N. Chigoro, for accused MUSAKWA J: The accused stands charged with the murder of his daughter Modester Damota. The incident took place on 10 September 2013 at Chawarura village, Chief Chiweshe, Centenary. It is not in dispute that the accused person set on fire a hut in which the deceased perished. The facts of the matter are that the accused was married to Evernice Kasiyabvumba the mother of the deceased. A day before the incident the accused had a misunderstanding with Evernice. According to the accused Evernice had gone out to attend some traditional dance and returned home late. Having assaulted Evernice, the latter sought refuge at her parents’ home in the same village. During his absence Evernice had collected seven bags of maize, six bags of fertiliser, two cameras, two printers, a bed, accused’s clothes and blankets. The accused made a follow-up. The sequence of events appears to be mixed up. This is because prior to engaging Evernice and her parents the accused was summoned to attend a hearing before the village chairman and it is not clear if this was on the same day that Evernice left for her parents’ home. At the time he quarrelled with and assaulted Evernice the accused had told her that she had not been brought up properly by her parents. Obviously this was relayed to accused’s in-laws who then reported to the village chairman. At the village chairman’s home the accused saw his in-laws and Evernice in attendance. It was resolved that the accused pay two chickens to his in-laws for disrespecting them. He was then told to collect his wife and child on the following day. HH 709-20 CRB 3/20 It is common cause that on the day of the incident the accused sought to collect Evernice and deceased. There is some dispute on some aspects preceding the incident. According to Ringson Piano the father in-law, the accused arrived around 6 pm. On the other hand, according to Evermary Kasiyabvumba who is Evernice’s younger sister, the accused arrived in the course of the morning. However both Ringson and Evermary insisted that following Evernice’s refusal to go with the accused, the latter left after uttering some threats. According to Ringson, before the accused left he said he was going to say something for the last time. The accused then said he was going to do something about Modester and go to Mozambique. On the other hand, according to Evermary, the accused said he would take poison or some people were going to die. Later during the night Ringson was awakened by a raging fire. As he sought to leave his hut the accused attempted to strike him with an axe handle. This happened thrice. Eventually Ringson managed to get out after the accused had left. He found his daughters lying within the homestead having been injured. Police officers later attended in the course of the morning and retrieved the charred remains of the deceased. According to Evermary who was fifteen years old at the time, she put up in the hut together with the deceased and Evernice. Late at night they woke up as fire was burning. She was the first to open the door and the accused struck her on the head with a stick. She ran towards her parents’ hut but changed course and headed for the neighbours. The accused pursued and struck her again and she fell down. She left Evernice and the deceased in the hut. According to the attending Police officer, the body of the deceased was about one metre from the door. Evernice and Evermary had been taken to the clinic. Evernice had a swollen shoulder, a cut on the hand and some bruises on the legs. On the other hand Evermary had a cut on the head. They looked for the accused but failed to locate him. Neighbourhood watch members were put on alert. The accused person was arrested on 12 September 2013 following a tip-off. He was found sitting under a tree in the vicinity of some gardens. The officer confirmed that the accused’s warned and cautioned statement was not confirmed as he objected to some contents which he claimed had been added. The warned and cautioned statement recorded from the accused person was produced by consent. It reads as follows: “I have understood the warned and cautioned statement (sic) but I do not admit charges levelled against me. I arrived at my father in-law’s homestead during the dead of the night with the aim of collecting my property which was taken by my wife Evernice Kasiyabvumba together with my mother in-law after an altercation with my wife. My father in-law refused to hand over my HH 709-20 CRB 3/20 property alleging that the property was suitable for use by their daughter Everncie Kasiyabvumba and her boyfriend called Kayongo. I told my father in-law that what he has just said was impossible and should he still keep on resisting with my property, I will set fire on the hut which contained my property so that the property will burn inside. Soon after those words, I set fire on the hut with a match stick. I burnt the hut from the doorstep. As I had said earlier on that when I married his daughter, she had nothing so I’m burning all the property. My father in-law grabbed my daughter Modesta Dhamota and threw her in the hut that was burning. I was angry with this incident and assaulted Evernice Kasiyabvumba with an axe handle. I missed my father in-law when I wanted to attack him and hit Koshiwayi Evermary Kasiyabvumba, my sister in-law with an axe handle. I assaulted these people because of the pain on my daughter who was thrown on fire by my father in-law. I then vowed that my daughter will not die alone. I am not the one who burnt my daughter in the hut but it is my father in-law who threw my daughter inside a burning hut which I had set on fire intending to burn my property.” The post-mortem report noted that the body was badly burnt, charred. The cause of death was open fire burns. The accused’s defence was to the effect that following marital problems with his wife Evernice Kasiyabvumba he was summoned by the village chairman, a Mr Dice. He was ordered to pay two chickens for disrespecting his mother in-law. Upon going to his in-laws home he saw Evernice in the company of a young man who immediately fled. Upon querying the association the issue was resolved. He remained at the home until 8 pm when he told his in- laws that he had come to collect his family. His mother in-law objected and was supported by Everncie. The accused demanded his property which comprised six bags of fertiliser, seven bags of maize, a bed and cameras which Evernice had taken. His in-laws disputed and claimed that their daughter had also contributed towards the acquisition of the property. In anger the accused resolved to destroy the property as he was of the view that no one should benefit from it. Hence he torched the hut and fled. He stopped and heard people crying that the child had died. When he went back he was confronted by his father in-law who struck him on the knee with a machete. He picked up a stick in a bid to fight back and struck Evernice on the head. Evernice’s sister Evermary joined in and assaulted him. The accused hit Evermary on the back. The accused then fled. He subsequently went to the Police after learning that they were looking for him. In his evidence the accused stuck to his defence outline. He also claimed that he set the hut on fire when everybody was outside. However, he claimed that in his anger he did not ascertain the deceased’s whereabouts. He stated that he had no time to take out his property from the hut because of anger. When he left the scene he knew that the deceased had died. HH 709-20 CRB 3/20 Concerning the warned and cautioned statement, the accused explained he was given an opportunity to write. However the typed version now had additional details. Prison officers then threate