S v Makondo (53 of 2021) [2021] ZWMTHC 53 (14 September 2021)

1 HMT 53-21 CRB 04/21 THE STATE versus ELIAS MAKONDO HIGH COURT OF ZIMBABWE MWAYERA J MUTARE, 18 May 2021, 2 June 2021 and 14 September 2021 Criminal Trial ASSESORS: 1. Dr Sana 2. Mr Mudzinge C Chibaya, for the State Mrs J Matsikidze, for the accused MWAYERA J: The accused pleaded not guilty to two counts of murder in aggravatory circumstances as defined in s 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. It is alleged by the state that the accused person killed two elderly people who were husband and wife by striking each one of them with an axe on the head. After fatally striking the couple the accused ransacked the couple’s bedroom and stole US233 and about $30ZWL. The accused denied having unlawfully and intentionally caused the death of the deceased persons. He also denied having any realisation that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Faina Mberi and Elson Mberi died. In his defence the accused denied the allegations and pointed out that he struck both deceased persons over a dispute involving his demand for US$100 for the work he had performed (cutting down maize stalks) at the couple’s homestead. He denied having the requisite intention actual or legal to cause the death of the deceased persons. He further advanced in his defence that he could not be held criminally liable since he was intoxicated at the time of commission of the alleged offence. The accused further admitted to having been negligent on the day in question and pointed out he regretted his conduct on the day in question but insisted he had no intention to kill the two deceased persons. HMT 53-21 CRB 04/21 Evidence The state with the consent of the defence adduced in evidence the following exhibits. An axe with a wooden handle exh 1 and a certificate of weight showing the axe handle and blade weight of 1,650kg exh 1 (a). Further tendered in evidence was the post mortem report exh 2. The report was compiled by Dr Nyafesu who examined the remains of Faina Mberi and concluded that cause of death was severe head injury secondary to excessive trauma. Worth noting is severe injuries observed by the doctor which among others included a deep laceration on the right parietal occipital area measuring 12cm x 6cm and a depth of 4cm with fractured, and depressed skull. A post mortem report exh 3 compiled by Dr Matsalaza was also produced by consent. Again worth noting are the numerous severe injuries on the deceased which included among others a cut about 13cm long, a fractured and depressed skull. Accused’s confirmed warned and cautioned statements in respect of count 1 and 2 were tendered in evidence and marked as exh 4 and 5 respectively. The accused in summary admitted striking the deceased Faina Mberi with an axe 3 times on the head, so as to get money to use. After striking the deceased Faina Mberi he proceeded to the kitchen where Elson Mberi was and struck him once with an axe on the head following which he took the deceased Elson Mberi’s phone. In his warned and cautioned statement exh 5 it is worth noting that the accused admitted having concealed the axe under his bed prior to the attack on the deceased. He retrieved the axe and proceeded to strike Elson Mberi. After the attack the accused then took the deceased’s cellphone, proceeded to strike 3 times on the head of Faina Mberi who was sleeping. Thereafter the accused searched for money and got away with US$233 and $30 RTGS. Also tendered in evidence is a photo album exh 6 with pictures of the deceased Faina Mberi and the general scene of crime as indicated by the accused. The state adduced evidence from 13 witnesses. 12 of whom had evidence formerly admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it was on common cause issues. Only one witness Feresi Tazviona Mudyanadzo gave oral evidence. The witness narrated how the accused arrived at the late couple’s homestead on 21 May 2019. The witness who was also employed by the late couple would work on specified days and go to her home. On 21 May 2019 the accused was engaged as a domestic worker by the couple. When she knocked off she actually left the accused doing some domestic chores. The witness’s evidence was that when she reported for duty on 24 May 2019 she found the deceased Faina Mberi lying motionless facing down and she also found the seriously injured HMT 53-21 CRB 04/21 Elson Mberi sitting helplessly in a chair. She called out for help and together with other witnesses helped ferry Elson Mberi to Rusape Hospital. His wife Faina Mberi was already dead after having been fatally wounded on the head. The witness’s evidence remained intact even after cross-examination. We found nothing to criticise about the manner the witness testified. She was a truthful witness. All the other villagers who came upon hearing the alarm confirmed observing that the couple had been fatally struck on the head. The investigating officer and team also confirmed the common cause aspects. It is common cause that the accused was employed as a domestic worker by the couple. It is also common cause the accused worked for about 3-4 days at the couple’s homestead. Further it is not in contention that the accused had been accommodated by the elderly couple as a child they were willing to stay with to carry out domestic chores for a remuneration. Also not in dispute is the fact that the accused was allocated his own bedroom. Considering the accused’s version in his confirmed warned and cautioned statements and his evidence in chief in court it is apparent the accused struck the couple with an axe, one after the other. That the accused approached the unsuspecting Elson Mberi and struck him on the head leaving him helpless is not in dispute. Further it is not in dispute the accused approached Faina Mberi who was sleeping and accused actually went and fetched light so as to see where his blows landed. He then struck her 3 times in the head leaving her dead. The accused in denying unlawfully and intentionally causing the death of the 2 deceased persons pointed out that he struck the deceased because his demands for US$100 were not being met. The accused stated out in evidence that his full time employment was rescinded by Mrs Faina Mberi and replaced by an agreement for a piece job at an agreed fee that was payable upon completion of the task. He narrated that he completed the task and payment was not made so in his drunken state he ended up striking the couple. The accused was exposed as a dishonest witness during cross examination. His version that he was intoxicated when he savagely struck the two was scattered by the fact that in his narration he made it clear that he had before going for a beer drink stalked the axe in his room for purposes of striking the deceased persons. Further in a clear indication that he was in full appreciation of what he was doing the accused struck the husband Elson Mberi once on the head as he did not have much issues with him. Going by the accused’s own narration the wife Faina Mberi is the one who had caused him not to be permanently employed. He had qualms or issues with Faina Mberi hence he actually proceeded to the room in which she was sleeping with an intention to strike her. On realising it was dark he went back and took a cellphone with a torch from Elson Mberi. He lit where the HMT 53-21 CRB 04/21 now deceased Faina Mberi was Lying and struck the latter 3 times on the head using an axe. Such conduct of preplanning and ability to apportion blameworthiness is certainly not consistent with being intoxicated to the extent of not knowing what he was doing. It was revealed during cross examination that the question of being intoxicated was merely raised in a bid to minimise the grave attack on the deceased persons. The accused had partaken beer the previous af