S v Muchocha (25 of 2023) [2023] ZWMSVHC 38 (21 July 2023)

1 HMA 25-23 CRB 55-23 THE STATE vs ALEX MUCHOCHA HIGH COURT OF ZIMBABWE MAWADZE J. MASVINGO, 13 & 21 July, 2023 Assessors: 1. Mrs Chademana 2. Mr Chikukwa Criminal Trial Ms M. Mutumhe, for the State Ms I. Moyo, for the accused MAWADZE J: The love triangle involving the accused, the now deceased Mercy Mupuwa (The female) and one Peter Majoka ended up tragically on 22 November 2021 at Chiredzi Town Council dumping Site, Chiredzi. The accused fatally stabbed the now deceased Mercy Mupuwa with an okapi knife three times on the thigh and on the stomach causing her intestines to protrude and loss of much blood. This is the basis of the murder charge as defined in Section 47 (1) of the Criminal law (Codification and Reform Act [Chapter 9:23] which the accused is facing. The narrow issue in this matter is largely a legal one rather a factual discourse. It is whether the defence of provocation as provided for in Section 239 (1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] is available to the accused. The accused tenders a limited plea of guilty to the permissible verdict being the lesser charge of Culpable Homicide as HMA 25-23 CRB 55-23 defined in Section 49 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] on the basis of provocation. There are however ancillary factual issues which need to be resolved first before examining the accused’s defence of provocation. THE FACTS The 47-year-old accused resides at Farm 28, Hippo Valley Chiredzi. He is employed as a cane cutter. The now deceased Mercy Mupuwa’s age is unclear but is put as between 18 years and 21 years. She was the centre of the love triangle. The now deceased was in love with both the accused and the 32-year-old Peter Majoka. Peter Majoka was residing at some shacks which were at the Chiredzi Town Council dumping site where he irked a living with others by scavenging on the dump site. What is unclear but amazing is how the now deceased managed the feat of co habiting with both accused and Peter Majoka. Apparently, she managed to keep both men blissfully happy until the fateful day on 22 November 2021 when she lost her life at the hands of the accused. The state alleges that on 22 November 2021 at about 20:30hrs the accused proceeded to Chiredzi Town dumping site where Peter Majoka was residing looking for the now deceased. He found the now deceased, Peter Majoka and one Chipo Msipa seated by a fire place near Peter Majoka’s shack. It is alleged that the accused pulled an Okapi knife from his pocket and stabbed the now deceased three times on the thigh and once in the stomach after which the accused fled from the scene. A report was made to the police immediately and the now deceased was pronounced dead on arrival at Chiredzi District Hospital moments later. The cause of her death is said to be haemorrhagic shock due to stab wounds. It is said the police recovered the knife the accused had used the following day on 23 November 2021 at the scene. THE ACCUSED’S DEFENCE OUTLINE The accused factually admits stabbing the now deceased with the okapi knife as alleged. The accused however denies that he had the requisite intention actual or constructive to cause the HMA 25-23 CRB 55-23 now deceased’s death. The accused relies on the defence of provocation and pleads that he be found guilty of the lesser charge of culpable homicide. The accused outlines the sequence of events as follows; The accused said he met the now deceased in Tshovani Township, Chiredzi in April 2021 after which he successfully proposed love. Thereafter he said in May 2021 he started to cohabit or live with the now deceased at his workplace at Farm 28 Hippo Valley Chiredzi. He said he intended to marry the now deceased. However, the accused said the now deceased was in the habit of stealing accused’s valuables after which she would disappear ostensibly to cohabit with other different men. The accused said just like the biblical prodigal son he would forgive the now deceased and take her back each time she returned as he loved her. In fact, the accused said he took this relationship seriously and was saving his meagre earnings to raise money for paying lobola for the now deceased. The accused said in November 2021 the now deceased returned to her bad habits and stole his Itel cellphone, a radio and US$600 after which she disappeared. The accused said he had to abandon work and started to look for the love of his life. In the process he established that the now deceased was co habiting with Peter Majoka at the Chiredzi Town dump site. The accused said on the fateful day and in a fit of blinding rage he proceeded to Peter Majoka’s residence at the dump site. On his arrival he was incensed to find the now deceased in a jovial mood seated at night with Peter Majoka and another woman. The accused said this was despite that the now deceased had caused such misery to the accused. The accused said without applying his mind he just stabbed the now deceased and fled. According to the accused his action was caused by extreme provocation as the now deceased had stolen his hard earned US$600 after which she had proceeded to play house wife to Peter Majoka. This, he said, incensed him. THE EXHIBITS A total of four exhibits were produced by consent. Their probative value is as follows; Exhibit 1- is the post mortem report compiled by Dr Dlandhlara who examined the deceased’s body. It outlines the injuries inflicted on the now deceased and the cause of death. The following injures were observed; HMA 25-23 CRB 55-23 “- 2 stab wounds on the right thigh 1 stab wound on the left thigh - 1 stab wound on right side of abdomen with intestines rooming out” - The cause of the now deceased’s death is not in issue. It is stated in Exhibit 1 as “haemorrhagic shock due to stab wounds by a sharp object” The accused admits inflicting these injuries which caused the now deceased’s death. Exhibit 2- is the accused’s confirmed warned and cautioned statement. Despite the fact that it bears some resemblance to the accused’s defence outline there are notable differences. During the course of the trial the accused could not satisfactorily explain the factual differences. They include the following; a) In that statement the accused said he had discovered that the now deceased was in love with 3 men at the same time. The accused does not specify as to when he made this discovery nor does he name or specify these 3 men. b) In that statement the accused said the now deceased would cohabit with him for continuous period of two weeks and would run away after stealing from him. However, during the course of the trial in his evidence the accused was now saying he cohabited with the now deceased from May 2021 to June after which she stole his US200 and cell phone and only returned after 2 weeks. Thereafter he said he stayed with the now deceased continuously from June 2021to November 2021, a continuous period of 5months. This differs from the intervals of 2 weeks specified in his statement. c) In that statement as the accused said what was stolen from him by the now deceased was a black Itel cell phone. There is no mention of either the US$200 raised later in accused’s evidence or the US$600 in his defence outline. d) In the statement the accused said on the fateful night when he found the now deceased seated with Peter Majoka, he uttered the following words in Shona before stabbing her; “Yah Ndakubata” translated to mean “Yah I have caught you” HMA 25-23 CRB 55-23 However later in his evidence the accused said he only uttered the following words; “my cash and cellphone” before stabbing the now deceased. The importance of these variations, omissions or contradictions is simple. It speaks to whether the accused is a truthful witness in many respects. Most importantly it raises the question of whether the accused managed to lay the factual foundation of the defence of provocation he relies upon. Exhibit 3- is the Certificate of weight of the Okapi