S v Makwinja and Another (Criminal Application ) [2023] ZWHHC 383 (3 July 2023)

1 HH 486-23 CRB 26/23 THE STATE versus NOMORE MAKWINJA and DIANA MAKWINJA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 13 &14 March; 24 May; 5, 7 & 30 June & 3 July 2023 Criminal trial Assessors: Mr Mpofu Mr Kunaka Ms C Mutimusakwa, for the State T Shadreck, for the accused MUREMBA J: The accused persons who are brother and sister respectively are accused of having murdered one Diana Makwinja Junior who was a biological daughter of the first accused and a niece to the second accused Diana Makwinja. Both accused persons pleaded not guilty to the charge of murder. However, the first accused pleaded guilty to the lesser charge of assault which plea was not accepted by the State. The allegations are that the two accused persons assaulted the deceased during the period extending from 8 July 2022 to 10 July 2022 at House number 6750 Budiriro 4, Harare where the deceased was staying with accused two, Diana Makwinja (senior). The two are alleged to have assaulted the deceased using open hands, fists, iron bars and a cooking stick several times on the buttocks and all over her body realising that there was a real risk or possibility that death may occur and continued in such conduct despite the risk or possibility. In denying the charge accused two stated that from 8 July to 10 July 2022 she was not at home but in Kadoma where she had gone to attend a work meeting. The second accused is employed by City of Harare as a nurse aid. She said that she only returned home on 10 July 2022 at 1700 hours. She said that she even found the deceased cooking in the kitchen. She said that she was appraised by accused one that he had disciplined the deceased after she had HH 486-23 CRB 26/23 failed an English past examination paper which he had given her to write. Accused two said that when the assault was perpetrated on the deceased, she was not present. The first accused who ordinarily resides at his rural home in Hwedza said that he arrived at the second accused’s house in Budiriro on 8 July 2022. He never assaulted the deceased on this day. On 9 July 2022, he gave the deceased an English past examination paper to write. He then marked it and the deceased who was about to sit for her ‘O’ Level examinations failed the paper. He said that this did not sit well with him because he had received several complaints from the second accused about the deceased being mischievous by arriving home late from school, having boyfriends, taking drugs, being rude and arriving late at school among other things. The first accused said that he took a broom stick and made her to lie down on her stomach in the kitchen whereupon he then assaulted her on the buttocks not with the intention to kill her but to instil discipline. No one witnessed the assault because the door, the windows and the curtains were closed. He assaulted her for almost 10 minutes with breaks in between as he would talk to her asking her why she was being mischievous and why she had failed the English paper. The deceased did not even cry or shout for help. The first accused said that this was the only incident when he assaulted the deceased. He denied assaulting her on the next day, the 10th of July 2022. The first accused said tht he chose to assault the deceased on the buttocks as they are not vital organs of the body from which death is likely to occur as compared to other parts such as the head, chest or the stomach. The first accused said that he had no intention to kill his child nor did he realise that there was a real risk or possibility that by his conduct he may cause death to the deceased. The first accused also said by assaulting the deceased on the buttocks it cannot be said that he negligently failed to realise that death may result from his conduct and that he negligently failed to guard against his conduct. The first accused further stated that from the 9th of July 2022 when he assaulted the deceased, she died after 21 days, on the 30th of July 2022 at Sally Mugabe Central Hospital where she had been admitted for treatment since the 15th of July 2022. He said that on 18 July 2022, the deceased was operated on the buttocks as reflected on the post mortem report. He said that both himself and the second accused bought all the medicine that was prescribed by the doctors to treat the infection on the buttocks. The first accused said that if all the medicine that they bought had been properly administered, the deceased would not have died. She would have responded to the medicine and the infection would have stopped. The first accused stated that the post HH 486-23 CRB 26/23 mortem report shows that the cause of death was general sepsis which is different from the assault that he perpetrated on the deceased. The State’s evidence To prove its case, the State produced the post-mortem report through Dr Tsungai Victor Javangwe who explained it in place of Dr Matinez who examined the remains of the deceased and compiled it. Dr Matinez was not available to explain it. The remains of the deceased who was aged 16 years were examined on 5 August 2022. The causes of death were concluded to be general sepsis, pyomyositis abscess in both gluteal; and severe gluteal trauma secondary to assault. On the comment section Dr Matinez stated that the deceased was assaulted and suffered trauma in both gluteal. Secondary to this, the deceased presented a pyomyositis abscess and infection in this region resulting in general infection of the body. Dr Javangwe explained that gluteal means buttocks. He said that the deceased had developed an abscess in the buttocks as a result of the assault that was perpetrated on her. An abscess is a confined pocket of pus that collects in tissues, organs or spaces inside the body. When an area in the body becomes infected, the body’s immune system sends white blood cells to fight the infection. These cells collect and combine with the damaged tissue and germs creating liquid called pus. The abscess resulted in an infection which resulted in general sepsis. The doctor further explained that if you experience blunt force trauma (being hit or struck with an object that is not sharp) to your tissues or skin surface, even though there might not be an obvious sign of the breaking of the skin, you can damage the muscles underneath. Therefore there might be bleeding underneath the skin surface. With this, there can be a risk of tissue becoming septic or infected and a person can end up with complications of septic shock. He explained that in casu the deceased’s buttocks had developed some pus because of the infection. This is what resulted in her being operated on in order to remove or take out septic material in a bid to save her life. The buttocks were now tender. He said that because of the operation, the deceased now had a large open wound in her buttocks area and because it is a dirty area because of its proximity to faecal matter and urine, the deceased remained at the risk of continued infection. General sepsis occurs when the body’s response to an infection is overwhelming, potentially leading to organ failure and septic shock. In casu the post- mortem report shows that the deceased’s liver had signs of infection, the kidneys had signs of shock, the lungs and the heart were pale. HH 486-23 CRB 26/23 The pictures of the deceased that were taken during the post- mortem examination were produced. Dr Javangwe commented on them and said that moderate to severe force could have caused the complications the deceased suffered. He said a severe assault which could have been once off or repeated could have caused the complications. He was not able to tell if the assault was a once off incident or if it was repeatedly perpetrated. The defence had no questions for the doctor. Mr Shadreck submitted that the doctor had clarified all issues. To prove that the accused persons assaulted the deceased the State led viva voce evidence from Naume Madziro, Nyembesi Mtetwa, Sheperd Chinyai and Joseph Mafunda Chipunza. From th