S v Dzemwa (808 of 2022) [2022] ZWHHC 808 (11 November 2022)

1 HH 808-22 CRB 23/22 THE STATE and ZEXTEEN DZEMWA HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 23 & 25 May, 26 & 28 July & 11 November 2022 Assessors Mr Mabandla Mr Chimonyo Criminal Trial B Murevanhema, for the State Z Makwanya with Ms L Mukutiri, for the accused MUTEVEDZI J: This murder is what was described in the case of R v Kemp1 as a motiveless and irrational attack. It illustrates the imperceptible gradations between sanity and insanity and responsibility and irresponsibility. The accused person Zexteen Dzemwa(the accused) who appeared to us to be a totally unsophisticated villager was arraigned before this court facing a charge of murder under s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). The allegations were that on 17 August 2021 at Madhishi village, Chief Musana in Shamva, the accused, with intent to kill attacked his daughter V. D (the deceased) with an axe and a stick. She sustained mortal injuries to which she instantly succumbed. The accused pleaded not guilty to the charge. His defence outline was characterised by weird facts. He said on that apocalyptic day, his wife left him in the custody of their two minor daughters RD (a minor) and the deceased as she went to pray on a nearby mountain. He decided to prepare breakfast for the children. As he proceeded to light up a fire at the cooking place which, like in many rural homesteads, was outside the house, he suddenly saw what he thought was a huge snake coiled around the fireplace. At the same time a whirlwind suddenly built up. After these supernatural sightings, the accused said he remembered nothing else between that 1 ([1957] 1 QB 399; [1956] 3 All ER 249) HH 808-22 CRB 23/22 time and the moment he found himself tied with a rope under a tree with multitudes of neighbours, other villagers and police officers gathered at his homestead. It was then that he was advised that he had killed one of his daughters. He said he was dumbfounded, confused, pained and crestfallen. He was not aware of what had transpired. He alleged that there must have been an external force which besieged him. He could not appreciate his conduct and could not restrain himself from doing what he is alleged to have done. He pleaded the defence of what counsel called insane automatism. To support that defence, he said there was no reason why he would have killed the deceased. She was a daughter whom he loved dearly. He loved his wife, the deceased’s mother. He loved both his other surviving children. He toiled every day to happily provide for his family. He also alleged that some years back, he was advised that he once experienced some episode of abnormality where he could not appreciate his actions. The state’s case In the course of the trial the state applied that the evidence of RD be formally admitted into evidence in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. With the consent of the defence, the evidence of that witness was duly admitted. The prosecutor also led oral evidence from two witnesses, Getrude Chiromba –the accused’s wife and deceased’s mother and Washington Dzemwa- the accused’s younger brother and deceased’s uncle. Several exhibits were also produced by consent. These included, medical reports compiled by two medical practitioners which showed that the accused was mentally fit to stand trial, the post mortem report which showed what killed the deceased, the accused’s confirmed warned and cautioned statement, an axe and a wooden stick which were alleged ly used to attack the deceased. All these exhibits related to issues which were common cause. In fact the majority of issues in this trial were common cause. They can be summarised as follows : 1. On the day in question, the accused inexplicably attacked the deceased with an axe 2. The attack killed the little girl instantly 3. The deceased continued to rant and rave after the attack. He actually threatened to also attack those who arrived and attempted to rescue the girl. 4. He was later restrained and was tied to a tree with ropes 5. The police were called and later arrived to arrest him 6. From the time he attacked the deceased early that morning until sometime later that day, he appeared to have been in a trance. He was muttering incoherently and could not comprehend what was going on HH 808-22 CRB 23/22 7. The attack on the girl was for no apparent reason. The accused lived happily and related well with all his family members. Below, we summarise the evidence of the witnesses in so far as it relates to the issues which arise for determination. Getrude Chiromba She is wife to the accused. She is mother to the deceased. We have no doubt that she found herself between a hard place and a rock. She lost a daughter at the hands of a husband who appeared genuinely loving but had lost control of his faculties. Her testimony supported the accused’s argument that he did not appreciate his actions on the day in question. It was exactly like accused indicated in his defence outline up to the point she climbed the mountain to pray. She left accused running around with household chores and making preparations for the children’s breakfast. She told us that since the time they married in 2001, the accused had not at any time exhibited signs of violence. If anything all she knew from him was love. He had love for his children. When she was up the mountain, she heard singing from the homestead. It was accused who was singing a church hymn. Part of the song’s lyrics was that “I refuse to be led by my family spirits.” She observed that as the accused sang, he was running around the yard holding wooden rods which the court understood to be the equivalent of what was referred to as the ‘staff’ by rabbinical scholars in the Bible. He stopped singing and started talking to himself. She couldn’t hear everything that he was saying. Part of what she picked up was that he was saying “they were troubling him but his bones had arisen.” He then send one of their daughters, the one who survived the attack, to the mountain to collect a Bible. He said he wanted to read the Bible and preach the word of God to the people. As the girl came up the mountain and she was climbing down, the witness said she then saw the accused savagely assault the child until she collapsed. She couldn’t reach her homestead because accused was threatening that he wanted both of them. She feared he would attack them also. She shouted for help. Neighbours came but were afraid to get near him given the violent state he was in. It was only Gilbert Nhepera and Washington Dzemwa his younger brother who were brave enough to approach him and restrain him. He tried to attack them. He was muttering and making noise. The helpers were clear that they needed to restrain him because it appeared he did not know any of the things that he was doing. They tied him up. During all that time, the accused didn’t attempt to run away. He remained in that trance. Importantly, the witness said that the accused had never behaved like he did that day. He had never lost control HH 808-22 CRB 23/22 of his faculties to the extent he did on the day in question. She only remembered that sometime in the past, he had fallen ill to the extent of failing to comprehend what was around him. They took him for spiritual assistance from members of their apostolic sect. During cross examination, it came out that the accused and the witness’s marriage had been blessed with six children. Unfortunately three had died of natural causes. The deceased became their fourth child to die. She stressed that the accused’s behaviour on the day in question was unusual. The singing, the chanting, the muttering and the running around the yard were all things that showed that something was wrong. She genuinely thought the accused was possessed by some spirit. Washington Dzemwa As already said, he is younger brother to the accused. His testimony was that he knew his brother as a c