S v Mutero (178/2023) [2023] ZWHHC 178 (9 March 2023)

1 HH 178-23 CRB 82/22 THE STATE versus YEUKAI GRAHAM MUTERO HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 28 September 2022 and 9 March 2023 Assessors Mr Chimonyo Mr Kunaka Criminal Trial C Mutimusakwa, for the State V Moyo, for the accused MUTEVEDZI J: This case evokes once again, the raging debate regarding the administration of corporal punishment on children by parents and guardians.1 Whichever side one takes in the discourse, it is a fact that some of the unintended consequences of that method of instilling discipline in children may be ghastly. The accused wept uncontrollably from time to time throughout the course of the trial. She was arraigned before us on a charge of murder in contravention of s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). The State alleges that on 20 January 2022, Yeukai Graham Mutero (the accused) unlawfully and with intent to kill or realising that there was a real risk or possibility that death may occur and continuing in her conduct assaulted Desmond Kuzivakwashe Matsatsi (the deceased) all over the body using a mulberry stick and a fan belt. The prosecutor’s detailed story was that on that date the deceased and her elder sister called Tinotenda (Tino) retired to bed around 2000 hours. In the odd hours of the morning, around 0200 hours the accused’s brother called Ocean Mutero (Ocean), with whom she is jointly accused of this murder but whom the police have not yet accounted for, got into the room where the deceased and Tino were asleep. They tied the deceased to the base of the bed before assaulting him with sticks and a fan belt. It turned out during the trial that Ocean had been invited to come to assist the accused in 1 See for instance the cases of S v Chokuramba HH 718/14 and Pfungwa and Anorv Headmistress of Belvedere Junior Primary School and Ors HH 178/17 HH 178-23 CRB 82/22 disciplining the deceased. The accused joined in assaulting the deceased. The two assailants accused the deceased of having joined a cult of Nyau dancers. After about an hour Ocean went back to his room to sleep. The accused untied the deceased and they all slept. She woke up and left for work around 0500 hours whilst Tino went out to sweep the yard. Tino later went back into the room and noticed that the deceased was unconscious. It was later discovered that he had died. An autopsy was conducted and the pathologist concluded that the deceased died as a result of brain damage, subarachnoid haemorrhage in the right hemisphere and head trauma. The accused pleaded not guilty to the charge. Her defence went as follows: It is true that she assaulted the child but did so in a bid to discipline him for various issues of his misconduct. In disciplining the child, she used a switch and a fan belt, implements which were not expected to cause any serious harm on the boy let alone cause his death. The assault was on the buttocks and the thighs. She did not have the intention to kill her own son. State Case The State opened its case by applying to tender the post mortem report. The defence consented. It was duly admitted and the cause of death was as already stated. It was uncontested. Thereafter, the prosecutor called oral evidence. The testimonies of the witnesses were as recorded below: Tinotenda Mutero Her testimony was critical to the determination of the case. She is a daughter to the accused. In fact she is now the accused’s only child. She retold the story from the beginning. The deceased was her younger brother. He was barely 13 years old. He had lately become very delinquent. On some days he would not return home despite his tender age. On others, he would return home very late. His behaviour showed that he had joined a cult of dancers commonly called Nyau dancers. On the fateful night he returned home around 2200 hours. The witness said she had earlier seen him at the road near their house. When he got into the house the accused asked him where he had been. She reprimanded him and warned that his wayward behaviour was getting out of bounds. The witness and the deceased then had a misunderstanding over their cooking duties. The deceased did not want to prepare the family’s supper. He finally relented and cooked the supper. At the time he was cooking he took the accused’s phone and was playing games on it. They ate their supper and all retired to bed. The accused slept on the bed with the deceased whilst she slept on the floor. Around HH 178-23 CRB 82/22 0200 hours she said she woke up to someone crying and observed that the accused was assaulting the deceased. She supported that the deceased had to be disciplined and even commented that he had lately become very mischievous. The deceased struggled as he was being assaulted. He fell a dish that was hung on the wall. It hit him. He also tried to hide under the bed. He was retrieved from thereunder. Ocean arrived at that point. The witness said at that time she left the room because it hurt her to see the deceased being assaulted. The accused assaulted the deceased on the buttocks and the thighs with his hands tied together with a speaker cable. Hours after the assault, the deceased actually woke up the accused reminding her that she was running late for work. The accused requested the deceased to boil bathing water for her. Later she again requested him to retrieve her shoes from under the bed. He did both tasks. The deceased then left for work around 0600 hours. The witness said she woke up around 0700 hours and went out of the house but not before she had spoken to deceased and teased him that he had deserved the beating because of his mischief. Outside she met Ocean who also remarked that he hoped the deceased would not be naughty again. At about 0800 hours Tino said she went back into the house because she wanted the deceased to tell her the passcode to the accused’s phone. She tried to wake the deceased but he did not respond. She shook him but he still did not respond. She poured water on him but that did not help. She ran out to advise Ocean. He came but did not succeed in waking up the deceased. Tino then ran off to tell the accused at her workplace. The witness confirmed that the accused had used a small switch plucked from a mulberry tree and a fan belt to assault the deceased. She also said at the time she tried to wake him up, she noticed that the deceased had vomited on himself. She did not however notice any bodily injuries on him. She was adamant that the accused did not kill the deceased. Asked if indeed the deceased had been initiated into the Nyau dancers’ cult, the witness said the deceased had advised her that he been assaulted and forced to eat unsalted roast chicken meat as part of the initiation. He had also been previously assaulted by other people. Under cross examination, she maintained that the deceased had been assaulted by members of the Nyau cult in in addition to being made to eat food that he was not used to. She added that the deceased had not complained of any pain after the assault by the accused. He had slept well and actually woke up the accused to prepare for work in the morning. He had no bruises on the head. There were no blood stains on his clothes. She also revealed that the deceased was violent and would not pass an opportunity to pick up a fight in the streets. Earlier in the week HH 178-23 CRB 82/22 that he died, he had returned home crying and indicated that someone had assaulted him at the tuck-shop. He complained of a headache and was bleeding from the nose. The accused reprimanded him. Thereafter, the deceased did not attend school for a week. The witness occasionally broke down and cried during her testimony. She struck the court as a young woman who was traumatised by the sudden turn of events. When she composed herself her demeanour was honest personified. Despite the frequent mischief by her younger brother, it was clear she was very close to him. The two of them were equally very close to t