S v Mafokosho (CRB 34 of 2019; HMT 33 of 2020) [2020] ZWMTHC 33 (4 March 2020)

1 HMT 33-20 CRB 34/19 STATE versus ANESU MAFOKOSHO HIGH COURT OF ZIMBABWE MWAYERA J MUTARE, 24 September 2019, 25 September 2019, 16 October 2019, 12 November 2019, 19 November 2019, 2 December 2019, 6 December 2019, 4 March 2020 Criminal Trial ASSESORS: 1. DR SANA 2. Mr A. T. CHAGONDA Mrs J Matsikidze, for the State C. Ndlovu assisted by Ms T Mafusire for the Accused MWAYERA J: The accused pleaded not guilty to a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], (The Criminal Law Code). In which it is alleged that on 24 December 2018 at House Number 1892, Chikanga 2, Mutare, the accused unlawfully caused the death of Vitalis Mudhumo by striking him with an axe on the neck several times intending to kill the said Vitalis Mudhumo or realising that there was a real risk or possibility that her conduct might cause death and continued to engage in that conduct despite the realisation. The brief allegations forming the basis of the charge are as follows. The deceased and accused were husband and wife respectively. They were on separation and had one minor child. On the fateful day the enstranged couple took their daughter for shopping in town. Upon their return when the couple entered their bedroom an argument ensued culminating in the accused hacking the deceased several times with an axe at the back of the neck thereby killing him instantly. The deceased died as a result of excessive external haemorrhage. The accused in her defence outline did not dispute the factual allegations leading to the striking of the deceased on the neck with an axe. She however contended that she had no intention, actual or legal to kill the deceased. The accused’s defence was that she without giving thought struck the deceased whose utterances inclusive of announcement that the marriage was over pierced her heart and HMT 33-20 CRB 34/19 shattered her dreams. The accused’s defence was that she looked up to the deceased, her husband as her life support and pinned all hopes on him given her poor background. The deceased instead after marrying her started dating other women and on the fateful day among other insults he announced that the other city woman he was dating was better than her in all exploits. The insults and thought of losing her marriage enraged her extensively and she was gripped with the irresistible impulse to hurt the deceased whom she then struck with an axe and he died. The accused in summary attributed the commission of the offense to the effects of the poor childhood background and the traumatic and abusive marriage. She insisted she had no intention actual or legal to murder the deceased. In closing submissions the defence sought to rely much on the defence of extreme provocation sufficient to reduce the specific intent crime of murder to a non-specific intent crime of culpable homicide. The accused was the only witness who testified in the defence case. The state on the other hand adduced evidence from 10 witnesses of which 5 gave oral evidence while the other 5’s evidence which was on common cause aspects was admitted formerly in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. George Sithole a member of the Zimbabwe CID Scenes of Crime Department’s evidence was basically that he attended the scene and observed the deceased body in a pool of blood. He observed 5 deep cuts on the back of the deceased’s head. He recovered the murder weapon a metal axe tendered as exh 2. The witness was also involved in taking photographs at the scene on the fateful day and later when accused made indications. Photographs marked as exh 4A1 – A5 by consent. The witnesses’ evidence on his observation of the lifeless body of the deceased on the bed was confirmed by Ivy Mutsago another police detail who also attended the scene. The evidence of the details was similar to that of Joel Rukara a police detail who also attended the scene. The investigating officer Loyce Chokani’s evidence detailed how she investigated the matter, made follow ups and arrested the accused who was by then at her rural homestead in Chigodora. The witness recorded a warned and cautioned statement from the accused. She also drew a sketch plan exh 2 as per indications from the accused and witnesses. The witness also caused the metal axe the murder weapon to be weighed by the post office officials. The investigating officer’s evidence was not contentious and it was formerly admitted. Also formerly admitted was evidence of Kiven Matengera who weighed the axe and compiled a certificate of weight recorded as exh 3 by consent. The metal axe weigh 4.030kg. HMT 33-20 CRB 34/19 Mollen Mafokosho a sister to the accused gave oral evidence. Her evidence was straight forward and clear. She could hear that the accused and the deceased who were in the confines of their bedroom were arguing but could not discern the nature of the argument. She took the couple’s child outside. Whilst outside she overhead the deceased call his nephew Trouble Chivasa to come to his assistance since the accused had locked him in. According to the witness the accused later came out holding a container of water and went out of the campus leaving instruction that the witness should take care of the child as the accused was visiting a friend. After about 10 minutes after leaving the house, the accused called on the mobile phone and instructed the witness to get inside her bedroom and see what the accused had done. Upon entry the witness just like the attending police details observed blood on the floor, bed and wall while deceased’s lifeless body was on the bed. She then alerted the landlady and Trouble Chivasa of her observations. The witness gave her evidence well. Although she was shocked by the horrendous attack she gave evidence with clarity considering she was a juvenile. Trouble Chivasa is an uncle to the deceased by virtue of marriage to deceased’s aunt Mavis Chivasa also gave oral evidence. He confirmed receiving a call from the deceased on the fateful day and further being alerted by Mollen Mafokosho of what had happened. The accused also phoned the witness disclosing that she had killed the deceased. The witness confirmed that the accused and deceased relationship was no longer cordial as the accused tended to be of violent disposition and that on occasions the relatives had stepped in to assist but the relationship appeared to be on a sliding slope, culminating in the deceased moving out of the rented matrimonial home. The witness did not witness the actual killing of the deceased. His evidence was clear that the couple’s relationship was no longer good hence the separation. The witness was sincere with the court in the manner he testified even under cross examination by the defence counsel. Lucia Vhurandi: - the landlady also testified. She knew both the accused and deceased. She was alerted of the fatal attack of the deceased by Mollen Mafokosho, whereupon she proceeded to the bedroom and observed the deceased’s body. The witness told the court that the deceased was generally quiet and she could only see him on rare occasions. From her observation going by the mode of dressing and lifestyle the accused was well catered for by her husband. She had never in the past witnessed the couple engage in volatile exchanges verbal or physical. The accused had also never shared with her that she was tormented physically, emotionally and financially. All appeared well. She denied having witnessed the accused engage in firewood selling business when it was suggested by defence counsel. She actually HMT 33-20 CRB 34/19 stressed that at the relevant period there was no power outage such that firewood was not necessary. The witness was viewed as a candid witness by the court. She was shocked by the gruesome attack as evidenced by her narration of observations of the cuts on the head but clearly had no motive to mislead the court. We accepted her evidence wholesome. Ma